12.1 Solidarity, Religion, and International Law
Solidarity has a long history within sociology, political science and philosophy, serving different purposes and objectives.Footnote 1 Throughout history it was drawn on for both good and ill and expressed itself in both nationalist and internationalist variants. It has offered a vocabulary of class struggle for political radicals, but also provided a language for the bourgeoise’s weariness in the face of what is perceived as disorder.Footnote 2
Solidarity’s place in religious accounts, especially in the age-old Christian notions of love and care, has been prominent. Christians had to find a way to engage themselves in this world without forsaking the world to come, and the way to bridge these two worlds had to include formulations legitimating collective action, and engagement in the living conditions of a suffering humanity in order to do God’s will on earth.Footnote 3
As suggested in a growing body of literature on the relation between international law and religion,Footnote 4 international law is deeply embedded in the Christian tradition, its structure, dogmas and hierarchies. It’s also been argued that fundamental concepts of international law are ‘secularized theological concepts’Footnote 5 with human rights considered as ‘a kind of world-wide secular religion’.Footnote 6 This is the starting point for the present chapter, which invites the reader to look at modern international law and central concepts within it drawing upon theological modes of analysis.
Following the severance of early international law from its religious roots, attempts to transform it into a value-based international system were reflected in the role of solidarity as the guiding principle of the new legal order following decolonization and the emergence of newly independent states on the world stage associated with a promotion of a ‘new morality’ in international law.Footnote 7 Solidarity was presented as part of the ‘new principle of global equity whereby those nations that have the necessary means are expected to assist those that do not’.Footnote 8 As Tallgren puts it, ‘international institutions and rules are seen as a way of achieving the goals uniting human beings and nations as they follow their instincts of sociability and solidarity’.Footnote 9
Apart from providing a framework for cooperation and joint action to address common challenges, international law is required to ameliorate inequalities of opportunity and structural disadvantage.Footnote 10 Thus, solidarity became a counterweight to reliance on state discretion. Yet, instead of a means to tackle the root causes of asymmetries and power structures, in the different legal domains in which solidarity operates, for instance environmental law,Footnote 11 UN peace and security law,Footnote 12 and refugee protection,Footnote 13 solidarity has been an emergency driven concept. It has been invoked to deal with ‘hot’ situations, that is, complex interrelationships between a wide range of parties, and to manage the likely future effects of crises that have not yet materialized.Footnote 14 As discussed in detail in Section 12.2.2, in all these domains, solidarity cohabits uneasily with law, as decisions about how to tackle environmental disasters, confront security issues and deal with humanitarian emergencies cannot be disentangled from assumptions about how the world is understood and organized and about what constitutes a ‘problem’ and a ‘solution’ at any given situation.
The present chapter seeks to offer insights on the Volume’s focal question ‘what does it mean to pose the solidarity question today’, locating it in the context of the operation of international law and of global governance. It asks what happens to solidarity when employed in international discourse and how this may reveal a legacy of Christian messianism. The chapter departs from the commonly held position that solidarity in international legal discourse is primarily a conceptual outcome of the decolonization era. Instead, it positions the genealogy of solidarity within early Christian writings in which the western theological concepts of suffering, love and salvation are detailed. Linking the Pauline doctrine and writings of early theologians, such as Augustine, to the processes of modernity – of which notions such as the West, the Global South, good neighbourliness and human rights are a part – the concept of solidarity is thus traced to a particularly Christian dynamic. As such, the promise of solidarity in international legal discourse, human rights discourse and migration/refugee discourse, the argument goes, is analogous to the way in which forms of messianism manifest themselves through a Christian logic of love, sacrifice and debt.
The analysis in the coming paragraphs proceeds as follows: Section 12.2 draws attention to the messianic logic underpinning the routine operation of international law zooming into the way in which human rights defers fulfilment in a manner resembling this logic. Section 12.3 goes deeper into Christian theology and the way solidarity plays out in the writings of Paul and other early theologians. Against this background, Section 12.4 explores the temporal elements of the ‘messianic’ in the Pauline doctrine and contrasts it with the ‘messianism’ of international law which significantly informs the function of solidarity within it. Finally, Section 12.5 offers an alternative thinking of solidarity in international law whereby the messianic is not denounced but rather embraced.
12.2 International Law, Human Rights and the Ever Emerging ‘Universality’
12.2.1 Establishing the Messianic in International Law
To say that key international law concepts have a theological origin is not new.Footnote 15 Take, for example, sovereignty. Hobbes calls God ‘the Soveraign of all Soveraigns’, despite attributing anthropocentric character to the state.Footnote 16 For this reason, Derrida suggests that ‘This humanistic or anthropologistic modernity of the institution of sovereignty and the state retains a profound and fundamental theological and religious basis’.Footnote 17 Here, I trace a particular aspect of this theological basis, namely the messianic, with the view to exploring how this influences the way in which international law routinely operates and what this entails for the function of solidarity as an international law concept.
Messianic expectations have been discussed as a core element of international law,Footnote 18 with the discipline being portrayed as holding the promise of a saviour. International law has been perceived as including the ‘announcement of something that remains eternally postponed’Footnote 19 and, therefore, seen as a temporary error-prone solution that allows individuals to live in a state of everlasting ‘emergence’Footnote 20 until the promise of cooperation, development and rights is fulfilled. Modernity as understood in international law and governance ‘always seeks an escape, promising a world that is more universally egalitarian, if not lovely’.Footnote 21
This resembles the messianic vision reflected in Judaism (waiting for the Messiah, a figure of salvation arising in the end of times) and in Christianity (waiting for the return of Jesus of Nazareth, the Messiah who already came to earth and whose return is expected in the final days, i.e. the Parousia). To be ‘born again’ in Christian tradition is to do away with a previous mode of existence. In the Pauline doctrine, one can live under the regime of the law, which is death, or one can live according to the spirit, which is life in Christ: to be born again, as a new man.Footnote 22
The messianic manifests itself within the human rights realm as well. Müllerson has described human rights as a language ‘expressed not in terms of being but of becoming’.Footnote 23 A closer look at the Universal Declaration of Human Rights (UDHR) reveals a specific type of pledge: to leave behind and not repeat the wrongs and inequalities that led to two world wars and immense human suffering. To be ‘born again’ in human rights, as in Christian tradition, is thus to do away with a previous state of being. It’s been argued that the countries signing the UDHR had been driven by ‘faith as trust in the meaning of history, in man’s ability to make history different from what it has been in the past’.Footnote 24 This points to a hope for justice translated into rights for everyone, whose full realization is deferredFootnote 25 heavily reliant on a ‘common understanding of these rights and freedoms’.Footnote 26
In human rights law and practice, the promise of emancipation focuses on how governments treat individuals, on participatory issues and on legal remedies. Kennedy and Koskenniemi have stressed that linking law with human rights or development, for example, was bringing with it great promise. However, the more squarely these vocabularies became part of governments’ programs, entangled in struggles over the setting of political agendas, the more significant decisions of social distribution escaped into an opaque private sphere and ‘out of the reformers’ reach’.Footnote 27 Formalism, bureaucratization, professionalization and human rights mainstreaming has been questioned as depriving the project of any revolutionary ambitions its conception may have generated.
Mutua has captured the purported universality and cultural neutrality of the human rights project through the metaphor of ‘Savages’ (the evil state), ‘Victims’ (the powerless individuals) and ‘Saviours’ (UN, Western countries, INGOs)Footnote 28 which, essentially, points to the triptych of sin, suffering and the Messiah.Footnote 29 The universal vocabulary of human rights has been criticized for promising the existence of an ‘international community’ that is unavailable and for acting ‘as if it knows what justice means, always and for everyone’.Footnote 30 Justice is defined as ‘a relationship to the state rather than simply a condition in society’,Footnote 31 hence distracting attention from background politics and economic conditions and the way they inform what justice is.
Critical legal studies have pointed to the fact that the language of human rights has obscured other languages (e.g. religious vocabularies, local traditions, economics) that could bring about meaningful change. Social solidarity, in particular, has been referred to as an emancipatory vocabulary crowded out by human rights.Footnote 32 Kennedy critiques the human rights movement for encouraging an elitist solidarity based on a false sense of unity of experience, ‘making it hard to articulate differences in the projects of male and female Palestinian human rights lawyers, Americans and Nigerians’.Footnote 33 Nevertheless, there has been no further elaboration on how a social solidarity vocabulary is meant to function.
12.2.2 Solidarity and Its Complicity with International and Human Rights Law
In Section 12.2.1 it was established that Christianity remains in conversation with modernity, especially considering how ostensibly secular texts, concepts and institutions are shaped by a religious heritage. The question then becomes: how does this inform the meaning and function of solidarity in international law? To address this question, one should pose a more basic one: given that international law’s basis is organized around sovereignty and the state, is there any room for solidarity whatsoever? According to von Mohl’s thesis, state sovereignty and the international community are the two main pillars and interrelated goals of international law.Footnote 34 In this constellation, it is not hard to imagine how solidarity comes into the picture. Mohl’s understanding of the principle of international community is not limited to a ‘consciousness of collectivity’Footnote 35 at the international level. Rather, a sense of collectivity and community goes hand in hand with individual freedom, with their combination leading to what has been described as ‘responsible independence’.Footnote 36
Following this line of reasoning, one could argue that solidarity which lies at the bottom of an international community is not oppositional but rather complementary to sovereignty in that it preserves the element of authority and independence, adding to the picture the need for the protection of common interests. The problem thus lies in how these interests and thereafter their protection have been envisaged and actualized through international law.
International economic law is symptomatic of how the dynamic of solidarity should and should not be understood. Although, following decolonization the principle was conceived as a duty ‘owed’ by the global north to the global south, there has been no indication that this dept will ever be paid. As MacDonaldFootnote 37 points out:
State practice and the practices of international organizations have recognized ‘solidarity rights’ only in situations where there are obligations on both sides, including, for example, the duty of developing countries to supply natural resources, to use financial assistance efficiently and to realize specific development projects. The kind of reciprocity involved here does not always imply ‘equal’ obligations; rather, the relationship is understood in a broader sense of displaying a balance of long-term interests between developed countries, who give assistance, and developing countries, who receive it.
To be in solidarity, therefore, means that ‘no one wins unless everyone wins’. At the heart of this thinking lies the idea of an order based on formal equality which requires there being future gain for everyone involved and which obscures any consideration of responsibility in the present moment for past and ongoing losses.
International environmental law is yet another field where the transition from an international law of ‘co-existence’ to that of ‘co-operation’, to use Friedmann’s typology,Footnote 38 has been seen as necessary. However, despite having initiated ways of concerted action with a view to achieving common goals,Footnote 39 the role of solidarity as promoting justice-oriented solutions has been debated and, at any rate, limited to a managerialism focusing on ‘common but differentiated responsibilities’Footnote 40 based on capacity and resources calculations. There has been, in other words, a focus on the present time as the basis for advancing ‘quick fixes’, deferring questions of distribution of wealth and power to an unknown future time.
Within the mainstream human rights tradition, solidarity has been reflected in the concern of states for the protection of human rights of all people. However, state practice confirms that an impoverished and narrow conception of solidarity has materialized so far. In the manner that Christianity is grounded on the relation between humans and their suffering, human rights are invoked as a response and solution to human suffering stemming from natural disasters, climate change as well as man-made calamities including armed conflicts, extreme poverty and inequality. Violent conflicts around the world, from Vietnam to Ukraine, resulting in large-scale human suffering, have generated much discussion at the UN level as to how external support could alleviate the increasing number of humanitarian crises. High levels of inequality fuel tensions between the haves and the have-nots and, according to the 2022 Emergency Watchlist compiled by the International Rescue Committee (IRC), more than a quarter of a billion people today need humanitarian assistance, an increase of 63 per cent within two years. David Miliband, President of the IRC, speaks of a ‘near-permanent crisis’ that amounts to a ‘system failure’.Footnote 41 ‘When reality departs from rhetoric, we must have the courage to call it out. Without genuine solidarity, there can never be real trust. This is very much the sentiment of the Global South’, as per Subrahmanyam Jaishankar, Indian External Affairs Minister,Footnote 42 inequality, solidarity and crises are put together.Footnote 43 In the face of a constant sense of crisis, genuine solidarity is referred to as the only way out of ‘collective helplessness’.
It is precisely this vocabulary of solidarity as a response to and protection during ‘crisis’ that creates expectations of peace and stability, yet what the world is faced with, instead, is an illusion of peace; peace is conceived in terms of war, see for instance the war against terrorism, against migration, against COVID-19. Otto suggests that, instead of more militarization, which delivers a perpetual condition of insecurity and anarchy, a resistance to this and reconceptualization of peace as solidarity might be more constructive.Footnote 44 In the same vein, critical security studies scholars have been cautioning that it is crucial to be aware of the politics one legitimizes by subscribing to a securitized, militarized and confrontational mindsetFootnote 45. But also, I would add, a messianic mindset. For instance, one might point to recent and past invocations of solidarity with Afghani women, narrated as helpless, subordinated to non-Western masculinities and as therefore in need of rescue by heroic Western men.Footnote 46 Along the same lines, solidarity has been at play in the ‘responsibility to protect’ doctrine, used to justify what is presented as a life-saving intervention ‘when the interests of humanity were being infringed by the excess of a barbarous or despotic government’.Footnote 47
Drawing on thinkers such as Foucault, Agamben and Butler, a rich body of research has examined the ways in which representations of concepts associated with security, such as protection, have been constructed as ‘truths’ in a manner that underpins and reproduces dominant power relations. For feminists, the purportedly apolitical notion of protection/aid or assistance is problematic as masking the reality, namely that for many people it is the one who claims to be providing protection that is their primary source of danger (the patriarch, the employer, the state, the liberal international community).Footnote 48 Arguably, the way in which solidarity has been narrated in contemporary discourses (e.g. the refugee crisis and the need for solidarity between states to avert the threat) qualifies it for being included in those concepts. The emergency rhetoric focuses on temporary solutions to counter the threat of migrant mobilization.Footnote 49 In fact, migration emergencies are generally portrayed as unexpected and unmoored from structural causesFootnote 50, obscuring the complex and long-term institutional causesFootnote 51.
As a result, although one may expect solidarity to potentially disrupt the formalism of expectation in international law, the analysis in this section speaks for the opposite. A human rights approach to solidarity has focused on accountability based on specific norms agreed upon as enforceable rights of individuals and groups rather than on a commitment to social justice which calls for structural reform of societies. Solidarity has been ‘bureaucratized’ and mainstreamed, oftentimes in a manner that has furthered suppression and exclusion.Footnote 52
12.2.3 Could Solidarity’s Radical Potential be Redeemed?
Based on the analysis in Section 12.2.2, any kind of radical potential solidarity may bear, this has been reduced to questions of charitable assistance, voluntary pledges or immediate (ad-hoc) reactions to emergencies to the extent they do not disturb the status quo. Perhaps this does not come as a surprise considering the limitations and structural flaws of the international system, including human rights law. Does this mean that solidarity must be dismissed altogether?
Drawing on responses to the critique of human rights, especially those establishing a basis for defending human rights from within the Marxist tradition,Footnote 53 O’Connell suggests that rights must be understood as ‘struggle concepts’, ‘a terrain in which the interests of different groups are fought over’.Footnote 54 Understood this way, human rights can and should be deployed in emancipatory political projects today ‘beyond narrow formalistic, and overly juridical concepts of what human rights are, and stress the centrality of social and political struggle in the formulation and defense of human rights’.Footnote 55
Following this line of reasoning, solidarity’s potential in putting the social question,Footnote 56 namely the material limits of the system, squarely on the table becomes clearer. It may give (human rights) law the flexibility it needs beyond a strict international obligations and national discretion distinction to promote decentralization and diversity. What remains unanswered, though, is whether and how human rights can break free of the attachment to the nation-state and the prescriptions of neoliberal economics;Footnote 57 and to what extent solidarity ‘defended’ by human rights can ‘de-centre the nation-state, the market and international human rights law as the arbiters of freedom’.Footnote 58
In a journal article from 2001, Koskenniemi begins with the following:
Human rights are like love, both necessary and impossible. We cannot live without them, but we cannot have them, either. As soon as we are safely installed in a social order that promises to guarantee our rights, that order starts to appear oppressively totalitarian. We need new rights, or new interpretations of old rights. Routine kills love, as it does to rights-regimes.Footnote 59
In the Foreword to this Volume he argues that solidarity may be ‘a little like love’ – due to its capricious, susceptible to constant change character – or perhaps ‘like the Event in Alain Badiou’s sense’, responding ‘to the implicit appeal of the other, within or outside a religious frame’.Footnote 60 This begs the question, could solidarity be a means to resist this ‘routine’ function of international law providing ‘the vehicle for a virtual summoning of all’?Footnote 61 And, if yes, what kind of ‘love’ would this transformation require?
Like solidarity, the notion of love has different meanings for different speakers in different contexts. Essentially, its meaning is constantly performed and reperformed depending on who is using it and on which occasion. There have also been several terms used to accommodate different conceptualizations of love, including the Greek ‘agape’ and the Latin ‘caritas’, both central concepts in Christian tradition. This tradition is centred in a conceptualization of love which, unlike in the quote by Koskenniemi, can be both necessary and possible. In Section 12.3, I turn to early Christian theology and explore the relevance of the notion of agape (love) to contemporary discussions on solidarity as a core concept and emerging principle in international law.Footnote 62
12.3 Solidarity as Christian Love: An Impossible Promise
The notion of agape (God’s love for humankind and the love that one should have for God and for one’s fellow human beings)Footnote 63 is deemed as the precursor of the Christian idea of solidarity, manifested in the unselfish love of thy neighbour.Footnote 64
The revolutionary potential of agape is described in the Pauline political theology.Footnote 65 Paul’s Letter to the Romans reads:
Let no debt remain outstanding, except the continuing debt to love one another, for whoever loves others has fulfilled the law. The commandments, ‘You shall not commit adultery’, ‘You shall not murder’, ‘You shall not steal’, ‘You shall not covet’, and whatever other command there may be, are summed up in this one command: ‘Love your neighbor as yourself.’ Love does no harm to a neighbor. Therefore love is the fulfillment of the law.Footnote 66
Agape, here, is the greatest of commandments or else the essence of the law (nomos)Footnote 67, while any other commandments are ways in which love can be put into practice. In Paul’s account, agape is more than an internal concern or feeling. It becomes a duty that has to be externalized in order to be fulfilled. Taubes underscores the revolutionary potential of agape in the context of Pauline political theology, arguing that Paul side-lines nomos (the Jewish law) in favour of the Christian command of agape.Footnote 68 In a similar way, Singer considers agape to be ‘the bond that establishes a fellowship between what is divine and what is human’.Footnote 69 According to her, agape (God’s love of man) precedes and takes precedence over nomos, which represents a submissive form of love (to God’s will).Footnote 70 Here an analogy with solidarity is visible: Christian agape is to love what solidarity is to law.
Love is also a key feature for Augustine (Saint Augustine of Hippo). In his writings, Augustine reveals the entanglement of love, the law and sin. More specifically, Augustine says that sin is ‘acting contrary to the commandment of love’.Footnote 71 From John’s ‘God is love’Footnote 72, Augustine expands to ‘God is love and love is God’.Footnote 73 Augustine’s political theology is deeply concerned with love. Engaging with questions of coercion and domination grounded on self-love as opposed to justice grounded on common love/love of others, Augustine advocates for a social life preoccupied with loving service, seeking justice, and the dispensation of that justice to individuals and parties that have been wronged.Footnote 74 In this sense, Augustine’s new society is grounded on a sense of solidarity bound by a re-forming (Rom. 12:2) power of love.Footnote 75
In early Christian teachings, agape embodies the elements of asymmetry, struggle and heterogeneity, while its revolutionary side is reflected in its appeal to an ever-expanding community that ultimately includes the entire human race.Footnote 76 The inclusion into the group of agape’s addressees of the concept of the enemy could be seen, in Schmittian terms, as indicating that agape has a genuinely political aspect (an expression of the agonistic relations between different social groups such as Jews, Jewish Christians, non-Jewish Christians, pagan Romans). This, however, has been seen as its weakness. Christian agape has been criticized for imposing an overly ambitious universal duty to love everyone, including one’s enemies, which one is bound to fail to fulfil; agape as a promise of a payment of self-sacrificing de-nationalized friendship, impossible to discharge.Footnote 77
More minimalist readings of agape are not uncommon amongst commentators. The parable of the Good SamaritanFootnote 78 has been seen as setting a standard of universal love towards needy people one encounters ‘by chance’. Within this context, Christian love is primarily a response to immediate needs and specific situations: feeding the hungry, clothing the naked, caring for and healing the sick and so on. Along these lines, Sangiovanni has expressed scepticism for the concept of love in the Christian tradition – with focus on the Catholic teaching – which, charitably construed, is not grounded primarily in the shared experience of human suffering as a result of original sin, but ‘in the injunction to universal love’, as a means of ‘alleviating suffering wherever it is found’.Footnote 79 Thus, on his reading, it is action ‘on behalf of another rather than with another’ (emphasis in the original).Footnote 80
In addition, there are instances in early Christian texts where kinship becomes key to describe the special bond among the faithful. The teaching of the Letter to the Galatians is emphatic: ‘So then, as we have opportunity, let us do good to all, and especially to those who are of the household of faith’.Footnote 81 Here, the importance of supporting those within the family of believers is underscored. The quasi-theological Durkheimian notion of ‘mechanical’ solidarityFootnote 82 harks back to this homogeneity of a society of believers and rests on an idea of an undifferentiated whole to be distinguished from the outside. On the other hand, advocating for a supportive Christian community as a powerful testimony to the love of God does not have to be seen as antithetical to a broader vision of agape. Augustine states that, to love enemies is ‘to love them in order that they may be at one with us, that they also may love’.Footnote 83
This points to a process of active participation and a complex dynamic of mutuality,Footnote 84 while at the same time naming a goal experienced as an obligation for community members to realize.
According to Paul, the possibility of executing the command to love your neighbour arises from an awareness of the kairos (Rom. 13:11). Despite the controversy among commentators around the Pauline meaning of kairosFootnote 85 and the way it shapes an understanding of the messianic time, there are indications that Paul is not referring to a future event but rather focuses on the present moment as such, ‘now’.Footnote 86 In his reading of Paul, Welborn suggests that
the ‘critical time’ (kairos) of Romans 13:11 does not refer to a future Judgment Day in which Christians must prove themselves, but designates the ‘time of the now,’ in cognizance of which one can fulfill the commandment to love the neighbor.Footnote 87
In other words, although the approaching judgement, the future heavenly kingdom and the period of waiting under the direction of the Spirit are central elements of messianism in the Pauline teaching and practiceFootnote 88, there is also a duty to be realized in the present time, as a precursor or a presupposition of what is to come. With this in mind, the problem of solidarity in international law and human rights is that it is imagined in a future redemption moment (second coming, thought in popular terms as a future event) and not as a dimension of the present (the kairos behind the present chronos). In this process of discharging the duty to love, suffering has a particular function. It is part of divine providence; Jesus was sent in human form specifically in order to suffer death on behalf of mankind. Hebrews 2:5–18 explains why the Messiah, Jesus Christ, had to experience human suffering and temptation to become the ‘Captain’ of salvation (from Greek ‘archēgon tēs sōtērias autōn’). As Jesus went to the Father through suffering and death, so the Way of Perfection is through suffering. In other words, agape as love and loyalty of God’s loving kindness is displayed primarily in its ability to persevere through all sorts of obstacles and trials.Footnote 89 Augustine emphasizes the link between the form and purpose of God’s loveFootnote 90, stressing that ‘God has loved us in order that we might love, and has offered himself as sacrifice’.Footnote 91 The legal analogon of Christ’s suffering would be rights violations which have to occur so that the duty of solidarity can be triggered.
There is tension at play here that needs to be highlighted. Agape in early Christian theology has a powerful socio-political character and a radical potential guided by an intention to engage in an empathetic process of transformation, of ‘becoming one’ with the other. At the same time, this ‘radicalism’ at the heart of agape does create concern in that it may be seen as overpromising by imposing an obligation of universal scope which is bound to fail. To resolve this tension and to respond to the need for a realistic account of what can be achieved in the ‘here and now’, more minimalist approaches to understanding agape as brotherhood or as acts of charity and tolerance have been suggested. The risk, though, of reducing agape to sentiments of mercy and philanthropy, similar to solidarity, would be to distort the concept somewhat, stripping it from its political core.
12.4 Can Solidarity Escape International Law’s Divine Messianism?
A pertinent insight from the discussion on the notion of agape in early Christian theology concerns the questions when and how the duty to love is to be fulfilled. The call to love the other must be understood in relation to the notion of kairos, which lies at the heart of the Pauline eschatological orientation. While many conceive of kairos in Rom 13 to denote the future-oriented, in-between time, awaiting the return of Christ, a focus on the present time and its relationship to the past might be more fruitful. According to Paul, the experience of the messianic event of death and resurrection shapes the present moment in the life of believers and generates ‘an awakening’. Holmes suggests that this awakening responds ‘to a higher ethical purpose, an active struggle against hypnotizing forces, and a collective consciousness bound by love’.Footnote 92 I would argue that this purpose is better imagined as an active struggle against aphasia.Footnote 93 An understanding of the messianic as a mechanism of awakening and collective consciousness of the past instead of an eternal postponement to a totally unknown future time has implications on the function of international law and of solidarity within it. To put it simply, the potential of the ‘now time’ coupled with past awareness might have more to offer than the potential of the ‘to come’.
Such an understanding is not far from Derrida’s conception of the ‘messianic’Footnote 94 – as opposed to messianisms – namely of a mode of thinking that ‘historicizes time by disallowing any recourse to an ultimate extra-temporal instance’,Footnote 95 and ‘a structure of experience’ of an opening to the future or of the future as openness to ‘the other’.Footnote 96 This understanding of the messianic inherited by Marx’s legacy has been contemplated by several commentators, including Benjamin, Bloch and others.Footnote 97 Although an in-depth analysis of the various conceptions of ‘messianic’ goes beyond the scope of this chapter, it should be noted that a waiting for the future is not to be conceived as a paralysing passivity but rather as a sense of imminence and action that affirms the promise to a future.Footnote 98 This waiting is the Derridean messianic: a universal structure directly tied to a concern for justice.Footnote 99 A concern that is not infinitely deferred as part of a resolving eschatology. Rather, the messianic energizes the struggle for transformation,Footnote 100 urgently affirming that one is to act responsibly and to decide in the present time, as opposed to awaiting a future to be actualized.
To be sure, unlike Christianity, in Derrida’s conception of the messianic, the messiah is never to come because if the messiah were to actually arrive, it would cease to have a messianic characteristic, the characteristic of the to come. And then justice would become ‘calculable, related to a program, a law, and a foreseeable outcome’.Footnote 101 The key takeaway, however, is that the lack of a fully present messiah (like with the absence of Christ in Pauline’s doctrine) is not an issue, but rather the very condition of a future and a catalyst to continue to hope and work towards the future.
To put it differently, there is a ‘structurally conditioned mismatch’ between the expectations created by the use of solidarity terminology and the reality of international law and human rights law in particular.Footnote 102 The heritage of solidarity as it plays out in Christianity creates the expectation for an everyday life supporting that realization of the essence of the law, namely agape. International law maintains the argument for ‘emergence’,Footnote 103 yet, within its structures, solidarity as the means for transformative action is eternally postponed to a future moment. Rather than encouraging the creation of permanent institutions that can support movements for social change which would pre-empt future crises, solidarity functions to sustain certain institutional ideals from radical adaptation.
Along the same lines, the distinction between believers and non-believers, inherent in religious thinking, manifests itself in contemporary international legal thought and in human rights vocabulary through binaries such as, nationals/non-nationals, migrants/refugees, economically active/non economically active EU citizens, civilized/un-civilized nations, developed/un-developed, and so on, one side denoting the ‘fulfilled’ and the other the un-fulfilled.
If agape in early Christian texts is understood as a means of working ‘against the premises of the culture it was intended to transform’Footnote 104, then in today’s highly competitive and monetized culture, it could be seen as inviting individuals to resist ‘cost-benefit’ solutions to social issues, as well as to resist divisions which mean to perpetuate unequal distribution of power and opportunity.
To go back to the discussion on solidarity and legal rights, advocating for a right to solidarity or for ‘solidarity rights’, such as the right to peace, to development and so on is not sufficient for solidarity’s radical potential to emerge. In fact, when understood as a right, solidarity is confronted with all the structural limitations of international law referred to earlier, making it likely to legitimize oppression.Footnote 105 As Sparer puts it
This contradictory relationship of legal rights to human freedom and community serves only to demonstrate that legal rights, by themselves, are insufficient for their announced purposes. It is the relationship of social movement and struggle to the use of legal rights which is determinative.Footnote 106
The above considered, the messianicity implied in the narration and actualization of the principle of solidarity resembles more a divine messianism and less the messianic in Paul’s theology or Derrida’s political philosophy. Solidarity seems trapped in the impossibility of agape’s promise (universalism) and prone to the risk of its infinite postponement that is solidarity is to come when (and if) those in need will ‘put their house in order’, with no memory of how this house came to be in disorder in the first place (history) and no translation of what this entails (responsibility). This leads us to conclude that, if solidarity is conceptualized as futurity, the past of injustice is forgotten as irrelevant. If, on the other hand, solidarity is the now of the kairos, injustice becomes a lived experience, and no memory of the past is necessary.
12.5 Solidarity as the Discipline of Living Together?
Is an alternative thinking of solidarity in international law possible? What does it take for solidarity to become the vocabulary of the periphery against the centre, offering an offset for the overblown claims of human rights? What kind of economic or distributive considerations is solidarity expected to bring to the fore and which social, religious or other remedies is it supposed to promote? Could emancipating people as solidarity ’beneficiaries’ – as opposed to right holders, potentially stress collective claims, shift the focus to the relationship among different groups and between groups and the state and enable cross-alliances, flexibility and sharing solutions?
Loizidou suggests that ‘law is not imagined as the space where radical ideas and practices can be accommodated, but rather a space where the status quo is preserved’.Footnote 107 As discussed in Section 12.4, emphasizing solidarity not as a response to crisis but through the lens of agape in Paul’s theology, namely as struggle for transformation and antidote to aphasia, might allow for re-imagining the world order. A similar account can be traced in loving politics (politics as relationship)Footnote 108, which, like politics in Badiou’s account,Footnote 109, refers to a space of collectivity.
Unger argues that ‘solidarity does not differ in kind from love’; it is in fact the social (or collective) manifestation of love, where love is ‘neither an act nor an emotion, but a gift of self, an opening up to another person …’.Footnote 110 Drawing on this, Banakar claims that
solidarity is a particular form of concern about, and understanding of, the other, where the other is not simply treated as the bearer of formal equal rights, or the object of respect, but as a person whose life, fate and ultimately welfare touches our own. Once solidarity is turned into legal rules and principles and implemented by legal authorities in a formal exercise of power, it becomes reified, thus losing its special love-like social quality, which transcends formal rights and entitlements.Footnote 111
Following this line of thought, Cotterrell holds that ‘there is a limit to the amount of progress in practical regulation that can be achieved by elaborating a concept of solidarity as a value in general terms’.Footnote 112 The point being that excessive formalism incapacitates solidarity.
The wise crafting of law is a crucial means of allowing solidarity in international law as the discipline of living together flourish. As Pahuja puts it, following Fitzpatrick’s thought,Footnote 113
… law, like love,Footnote 114 responds to the world, in both its fixity and change … ‘We must be vigilant against the tendency of law to declare itself just, of justice to declare itself Rights, and of community to become colony. Our duty is not to save the Other with (our) law, or (our) knowledge, but to meet lawfully with those who live by other laws’.Footnote 115
Along the same vein, Lilla Watson, an aboriginal activist and artist, argues: ‘if you have come here to help me, then you are wasting your time. But if you come up because your liberation is bound up with mine, then let us work together’.Footnote 116 Put simply, the focus of international law should be to train its objects towards solidarity as a mutual partnership in the pursuit of freedom as opposed to ad hoc charity.
From a critical political-theological perspective, if one subscribes to Horkheimer’s claim that Marxism is nothing else than secularized Christianity, concerned with the liberation of the oppressed, the exploited, the marginalized, a solidary society is that grounded on a secularized duty of a de-nationalized, neighbourly love, whose promise – free from messianisms – relates precisely to a ‘potentiality in the present’.Footnote 117
12.6 Solidarity as a Radically Presentist Promise
Religious patterns of thought and practice remain operative within modern international law order. A testimony to that is the strategic role of solidarity in international legal discourse which, despite the absence of a theocratic authority, it oscillates between a programmatic secularism and a religious sociability. In this chapter, I have taken issue with the transcendental and oftentimes opportunistic reference to ‘solidarity’ by situating it within the broader discussions on international law’s purpose and architecture. In the search for continuities and contingencies, I propose to put today’s discussions on solidarity in international law in front of the mirror of early Christian theology. Solidarity belongs to a vocabulary rooted in the notion of ‘love’ as a post-theological strategy and in the idea that law, as an empirical matter is an expression of normative relations between interdependent individuals. Like religion itself, solidarity does have a social purpose, which imparts a dynamic enthusiasm capable of overriding reverses, yet it simultaneously reflects a vanity of attempting to provide immediate solutions to long standing structural problems.
To the question ‘what is international law like with solidarity as one of its foundational components?’, this chapter responds that, in the current structures, international law is directly or indirectly marked by a prevailing canonical model of solidarity, notably one tied to the state, territory and sovereignty. This model features linear time, in which solidarity’s fulfilment lies in the future crystallizing aspects of Christian agape concerned with emergency help and philanthropy, that do not essentially address injustice but rather tend to perpetuate it.
Solidarity lives in an uneasy cohabitation with international law. Seen against the backdrop of a ‘crisis’, it seems to be normalizing a coercive system as well as to enhancing faith to institutions which have created asymmetry in the first place. Making solidarity a principle in international law has allowed the law to solidarity being infiltrated by the vocabulary of technocracy (or securitization), blending it smoothly with human rights. Its exercise through the means of modern law has brought solidarity farther from its nature, bringing it close to defining obligations and less to opening space for social movements and collective action to tackle structural injustices.
The chapter goes on to ask whether ‘an alternative thinking of solidarity and of international law is at all possible?’ Here the response is that, for international law to be organized around a conceptualization of solidarity as Christian love, means to rethink solidarity as the more radical aspects of agape and to embrace its messianic openness to something beyond immanent calculation as politically indispensable. As I have shown, early Christian theology offers an understanding of the salience of the present moment as an awakening that presses forward; that endures uncertainty for the sake of the future but builds on a past consciousness and decides responsibly. Responsibly, here, is to be imagined as taking different meanings depending on the circumstances. Precisely like the messianic in the Pauline doctrine, the messianic in the promise of solidarity could be seen as preserving the possibility of solidarity action that transcends any formal understanding of what solidarity is and how it can be operationalized.
It is, indeed, tempting to assume that concepts and values in international law have a single correct meaning and a particular function. However, this chapter emphasizes a legacy of Christian thought in international law that points to an imminent moment that cannot be envisioned in advance, similar with the circumstances under which solidarity is to be demanded and offered. Instead of considering this as a drawback and a barrier for solidarity to work in the present time, it can be embraced as the basis for an openness to the unknowable and for a flexibility of action. What is not disputed is that, this openness to the ‘not yet’ should be followed by an awareness of an ‘already’, that is of past experience with winners and losers and with persisting consequences in need of evaluation and re-evaluation.
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