Introduction

1 “A call for national solidarity”, “welcome an effort of national solidarity”, “create a wave of national solidarity”… These consecrated formulas are frequently used by various interest groups as well as by the public authorities themselves, without it being known precisely what is meant by “solidarity” and what is hidden behind the adjective “national”. National solidarity is very present in current public rhetoric. In the short term, it is one of those expressions whose meaning is often hidden. State initiatives, such as the creation of a Ministry of National Solidarity in the first government of Pierre Mauroy (1981), the call for national solidarity to justify the reintroduction of the solidarity tax on wealth (ISF) in 1989, and the invocation of national solidarity in 2000 to establish state medical aid for the benefit of the most destitute have contributed to generalizing this symbolic expression marked by its positive resonance but whose precise outlines remain to be defined.

2 Given its place in political rhetoric, we propose to contribute to the deciphering of the notion of national solidarity through an analysis of its origins and its place in the legal system, particularly following its consecration in the preamble to the 1946 Constitution. [1] The aim will be to examine the meaning of this expression and to see to what extent it can be used as a guideline to explain certain legislative policies.

The emergence of solidarity in public rhetoric

3 Explaining the role of national solidarity in the political sphere immediately confronts the semantic complexity of its first component, the expression “solidarity”. The ambiguity of this notion is essentially due to the plurality of meanings that result from the different uses that have been made of it over the centuries (Bigot, 2002). Initially, the notion of solidarity was exclusively used in a legal sense. Roman law was indeed aware of the existence of “corréales obligations” which weighed on many debtors and whose main function was to provide a guarantee to the co-contractor. In the Middle Ages and under ancient law, this term gave way to the expressions “obligations in solidum” or “solidity” whose regime was close to the corréales obligations of Roman law (Lévy and Castaldo, 2010). The term “solidarity” is more recent, since it only dates from the Civil Code of 1804, the drafters of which skilfully enshrined the fusion of the Roman corréales with the image of mutual guarantee (Mignot, 2002). [2]

4 From the second half of the nineteenth century onwards, a number of authors moved away from the purely legal dimension of the expression of solidarity in order to transform it into a political and social notion and use it as an explanatory element of the development of societies (Hounieu, 2003). At that time, fraternity, the flagship notion of the French Revolution, was increasingly openly called into question by those who saw it only as an avatar of the Christian idea of charity and who, in a political context marked by a strong anticlerical current, denied it any effectiveness vis-à-vis those in power (Borgetto, 1993).

5 It was undoubtedly Pierre Leroux, a socialist deputy until his emigration to England, who transformed the legal notion of solidarity into the principle of social organisation. He himself boasted, in 1863, of having “first borrowed the term Solidarity from the legists, introducing it into Philosophy”, that is, according to him, “into Religion”, aiming at “replacing Christian Charity with Human Solidarity” (Leroux, 1863). Leroux’s analysis was first of all based on a critique of the Christian conception of charity which, according to him, was an “ignorant devotion” (Leroux, 1840) to humanity emerging more from pity than from love. According to a social vision based on charity, the bonds between men are more the result of a “duty” than of a “direct feeling of solidarity” (Leroux, 1840), a duty that would place individuals in relationships that are at least hierarchical, if not iniquitous (Hounieu, 2003).

6 Pierre Leroux’s work and his conception of solidarity as a political and social principle were subsequently very well received by authors in the second half of the nineteenth century. Auguste Comte and Émile Durkheim continued the transformation of the notion of solidarity by integrating it into the field of political philosophy and by placing it at the heart of their respective works and more precisely as the keystone of their doctrines on the division of labour (Durkheim, 1893; Comte, 1864). These two authors played an essential role in the development and theorization phase of the concept. In his doctoral thesis on the division of labour published in 1893, Durkheim questioned in particular why “the individual, while becoming more autonomous, depends more closely on society”, before developing his famous distinction between mechanical solidarity and organic solidarity (Durkheim, supra).

7 Under the impulse of the works of Comte and Durkheim, but also of Charles Renouvier, Charles Secrétan, and Henri Marion (Blais, 2007), the attempts to find a synthesis of the idea of solidarity gradually led to the formation of a doctrine with both political and legal dimensions: solidarisme. If today this movement is mainly linked to the personality of Léon Bourgeois, it is first of all the philosopher Alfred Fouillée who, in several works, provided a summary of the conception of solidarity and the role that this notion should play in social analysis (Fouillée, 1880 and 1906; Borgetto, 1993). The notion of solidarity particularly serves the development of the image of society as a contractual, or at least quasi-contractual, body and thus the development of the idea of a social debt that weighs both on the members of the social body and on society embodied by the state. In retrospect, the doctrine of Alfred Fouillée appears to be an essential element in the final elaboration of the solidarist doctrine.

8 Indeed, if the works of Fouillée cannot be qualified as strictly solidarist (Borgetto, supra), it is the theories of Bourgeois which marked the beginning of the solidarist doctrine in the strict sense. Apart from the role that Bourgeois himself played in the political life of the time, [3] the success of the theses of his book Solidarité is explained by the fact that he knew how to abstract himself from the sphere of philosophy and social sciences to affirm the legality of a social duty of solidarity. “Social duty is not a pure obligation of conscience,” he declared, “it is an obligation founded in law, the execution of which cannot be evaded” (Bourgeois, 1896). While drawing on the thinking of Fouillée, Bourgeois’ work is innovative in that it specifies the consequences of the duty of solidarity. Since the contributory share of the social debt payable by each individual is not determinable, progressive taxation should be favoured as an instrument for paying off each person’s share of the debt (Bourgeois, 1902). In return, in this concept of solidarity the establishment of a system for pooling social risks such as work accidents, unemployment, even sickness and old age (Bourgeois, 1906) is up to society without the state having to play a major role.

9 While trying to develop a third way that would allow a conciliation between a liberal individualism resulting from the French Revolution and the demand for justice proclaimed by socialist theories, the solidariste doctrine and especially that of Bourgeois himself, greatly influenced the debate of ideas and the political rhetoric of the late nineteenth and early twentieth centuries. Charity had been relegated to the private sphere alone since the 1860s and the principle of solidarity had been transformed into a concept that could guide the action of public authorities and confer real social rights on citizens (Borgetto, supra). To arrive at this conclusion, Bourgeois used the notion of the social quasi-contract, which is not unlike that which Ernest Renan elaborated concerning the concept of the nation, considering that it “is therefore a great solidarity, composed of the feeling of the sacrifices that one has made and those that one is still willing to make” (Renan, 1882). It is therefore hardly surprising that the adjective “national” was soon added to the notion of solidarity thus becoming an “identity phenomenon” (Mignot, 2004).

The appearance of national solidarity in legal rhetoric

10 The notion of “national solidarity” emerged in the last years of the nineteenth century in a context marked by increased national sentiment and nationalist movements with diverse political aspirations. At that time, national sentiment began to merge with the idea of the Republic. It is said today that this was originally intended to erase the trauma caused by the defeat of 1870. The rivalry between France and Germany that followed this war, and particularly the annexation of Alsace-Lorraine, gave rise on both sides of the Rhine to nationalist movements based on the priority given to their respective nations of origin embodied in strong state structures.

11 It was therefore only a matter of time before the notion of “national” solidarity appeared in parliamentary activities in support of legislative initiatives. In the report on a bill intended to bring relief to the victims of the hurricanes and floods that had affected northern France in 1894, a Member of Parliament noted, for the first time, that some parliamentarians had referred to national solidarity in demanding aid for the victims (Boucher, 1894). A few years later, the French government appropriated this reference (Clemenceau and Caillaux, 1907) to justify the adoption of relief laws following the Bourbon-Lancy and Mamers disasters in 1904, [4] the furnaces in Savoie in 1907, [5] and the floods in January and February 1910. [6] Nevertheless, these occasional invocations of national solidarity did not yet give a precise idea of its legal content and its real scope as no thoughtful analysis had yet been undertaken on this new concept. It was not until the beginning of the First World War and the awareness of the extent of the damage caused by the conflict that a theoretical debate developed on the role that national solidarity could play in defining legislative policy.

12 As part of a series of articles published under the patronage of the Comité national d’action pour la réparation intégrale des dommages causés par la guerre (CNARIDG) [national action committee for the comprehensive reparation of war damage] several law professors including Maurice Hauriou and Raymond Carré de Malberg published their analyses on the grounds for the reparation of war damage. Carré de Malberg maintained that only “national solidarity, which unites all the French”, is capable of founding a system of comprehensive reparation (Carré de Malberg, 1915). While, in retrospect, some of his arguments are more marked by the spirit of the era than by a political and legal analysis, the author’s comments had the merit of taking a stand for a transformation of the idea of national solidarity into a true political-legal principle. According to the author, “until it becomes legal by its legislative consecration, this idea can only be, for the moment, a moral and political idea” (Carré de Malberg, supra).

13 Finally, in accordance with the ideas of Carré de Malberg, national solidarity received legislative recognition with the law of 17 April 1919 which organized the reparation of the damages caused by the war of 1914–1918. [7] The inclusion of the notion of national solidarity in the preamble to the Constitution of the Fourth Republic marks its apogee since its appearance some five decades earlier, although it has subsequently never ceased to be present in political rhetoric. Paragraph 12 of this text proclaims the “solidarity and equality of all the French people in the face of the burdens resulting from national calamities”. Although the formula used by the constitution is not expressed in the same terms, its adoption completes the introduction of national solidarity into the French legal landscape (Pontier, 1983; Hounieu, 2003).

Exaggerated importance of the notion of national solidarity in juridical rhetoric

14 Although paragraph 12 in the preamble of the Constitution became a new basis for normative action (Dubreuil, 2008) in 1946, its legal scope has been hampered by the imprecision of the text and, above all, by the requirement for legislative implementation. Faced with the rather vague wording of this provision, the administrative and constitutional judges have endeavoured to clarify its legal value since this text was promulgated. This task proved all the more difficult because the paragraph was only added to the draft constitution at the last minute and only gave rise to discussions in the 1946 Constituent National Assembly on its scope, but not on the very principle it proclaims.

15 Commentators on the 1946 constitutional preamble are unanimous in believing that the implementation of paragraph 12 of the preamble is subordinated to legislative action, and in drawing attention to the absence of autonomous legal value. Confirming this reading of the texts, on several occasions the administrative judge has also issued declarations in the sense of an impossibility to invoke this text in the absence of legislative provisions which implement it. In a judgment of 10 December 1962, the Council of State decided in particular that “the principle thus established [by paragraph 12 of the preamble], in the absence of any legislative provision ensuring its application, cannot serve as a basis for contentious action for compensation”. [8] This means that the implementation of the principle of national solidarity in paragraph 12 of the 1946 Constitution is subject to the existence of legislative measures and that, in their absence, this principle cannot be imposed on administrative authorities (Pontier, supra; Hounieu, supra).

16 As far as the decisions handed down by the Constitutional Council are concerned, they are in line with those of the administrative judge, but have made it possible to specify more clearly the normative content of paragraph 12 of the 1946 preamble. Indeed, the constitutional judges have limited an important right in social policy to the legislator: the right of transforming the idea of national solidarity into concrete measures. These may include setting up social assistance schemes or adding a support mechanism to traditional compensation techniques which are the responsibility of civil and administrative authorities.

17 In this connection, the Constitutional Council specified in a judgment of 30 December 1987 that, when the legislature applies the principle of national solidarity, “it is open to it to define the appropriate implementing procedures in each case without necessarily being obliged to apply identical rules”. [9] It is therefore for the legislator alone to assess the existence of a “national calamity” and, by the same token, the desirability of a support system. Moreover, the legislator has a wide margin of manœuvre as to the scope, form, and method of financing of this type of measure. [10]

18 National solidarity, considered as a legal principle and limited by these jurisprudent solutions, can therefore only have a limited explanatory value since it is subject to the sovereign assessment of the legislative power whose guiding principle is not always very clear. However, the legislature further weakened the legal scope of this principle by adopting texts that were supposed to implement paragraph 12 of the 1946 preamble, but do not have normative scope because they merely proclaim national solidarity without accompanying it with concrete compensatory measures.

19 We are referring here to laws which affirm that certain categories of persons are taken in charge by national solidarity without the litigants having the right to call on the enforcement of these laws. Contrary to the hypotheses according to which the legislator submits implementation decrees intended to specify a legislative measure, there are, in fact, legislative texts which limit themselves to formulating a “promise” of national solidarity towards specific beneficiaries without containing any specific measures. This phenomenon, initiated by a legislator who relies on a certain effect of announcing the term solidarity, thus contributes to the proliferation of legislative texts without a normative dimension. Indeed, for a text to be qualified as a legal regulation, it must, where appropriate and by reference to an implementing regulation, be sufficiently precise so that a litigant could formulate a claim on its basis and submit it to a judge (Jestaz, 1986; de Béchillon, 1997). Thus, when a law merely asserts “national solidarity” without specifying the authority responsible for its implementation, the conditions for granting its benefits, and its financing, it cannot be recognize as a rule of law.

20 An excellent illustration of a legislative proclamation of national solidarity is given by article 1 of the law of 4 March 2002 on the rights of patients and the quality of the health system, which was adopted with a view to breaking the so-called “Perruche” jurisprudence [11] of the Court of Cassation. The 2002 Act was intended to prevent the award of damages to children whose prenatal disability had not been detected during pregnancy as a result of the fault of a health professional or institution. In such a case, parents of children born after 4 March 2002 may only “claim compensation for their sole prejudice”. According to paragraph 3 of this article, however, this harm cannot “include the particular burdens arising, throughout the child’s life, from this disability”. The legislators then specified that “the compensation of the latter is a matter of national solidarity”.

21 In the absence of a concrete compensation mechanism, it was therefore not surprising that commentators on the law of 4 March 2002 and associations of disabled persons saw the affirmation of “compensation” for disability through national solidarity as a simple “hope” and noted that one would have to wait and see “what happens to these good intentions” (Durry, 2002). Contrary to what one might have thought, the legislator did not decide to create a specific compensation fund for children whose prenatal disability had not been detected during pregnancy through the fault of a health professional, but, with the law of 12 February 2005, instituted a “compensation” scheme for all disabled persons. Thus, damages which had previously been compensated through civil or administrative liability and whose compensation was excluded by the law of 4 March 2002, are now covered by a “compensation benefit” from which those under 20 years old can benefit by virtue of a law of 19 December 2007, i.e. five and a half years after the proclamation of national solidarity in the law of 4 March 2002.

22 We have chosen this example [12] to show that there are not only symbolic laws or laws that abstractly recall fundamental principles among non-prescriptive legislative provisions (Council of State, 1992). Laws that proclaim national solidarity for the benefit of certain persons without providing for compensation measures or referring to subsequent implementing legislation also contribute to the broader phenomenon of degradation of the norm associated with the proliferation of laws exempt from any normativity (Bécane et al., 2010). Far from raising questions solely about the effectiveness of the rules of law, this normative dilution of legislative action is worrying because it blurs the line between what is the law, and what is not, within the very corpus of legal texts.

23 In terms of national solidarity, it does not seem that non-prescriptive texts are the mark of a positive evolution although some authors argue that the emergence of this “soft law” is a guarantee of adaptability of the law (Libchaber, 1999). Indeed, even if the example chosen shows that a solidarity law can, several years after its adoption, access normativity through the adoption of complementary legislative or regulatory provisions (Pomart, 2004), it does not prevent these texts from creating the appearance of a right to compensation without this right being immediately invoked before the courts. Apart from the fact that these texts are thus a source of legal uncertainty as to the scope of the rights of litigants, it is not excluded that, in proceedings initiated by a beneficiary of the national solidarity affirmed by the legislator, a judge might lend a normative effect to a provision which one might think was deprived of it (Molfessis, 1997).

Conclusion

24 An expression born from the fusion of philosophical and sociological ideas at the end of the nineteenth century, national solidarity has undergone considerable transformation in political rhetoric and is today a notion disputed by various actors in political life. Originally invoked for “calamities”, such as floods, mining disasters and wars, the expression now appears essentially as a political label attached to demands from victims’ associations that play the role of pressure groups in the normative process, or measures taken by the state itself, when it is a question of justifying collective financial efforts or symbolically recognizing the support of the social community to a category of people. All these factors have meant that the notion of national solidarity has lost its exceptional and solemn character over the years (Pontier, 2001). In the absence of sufficiently precise outlines, its force of conviction as a principle guiding political action has been challenged. The weak effectiveness of the constitutional principle of national solidarity and the introduction by the legislator of non-prescriptive provisions further accentuate the relativity of its legal value under French law. Both also contribute to the devaluation of the notion of national solidarity in public rhetoric, a devaluation that finds an additional cause in the permeability of the borders between politics and law.

25 At the end of this study, national solidarity is presented as the fruit of astonishing interferences between the legal sphere, political rhetoric, and debates of ideas that animated the end of the nineteenth century. Nevertheless, despite its long and eventful genesis and its consecration in a text with constitutional value, the expression never seems to have received sufficient normative content to qualify it as a legal concept in its own right. Although national solidarity is undeniably present in rhetoric and legal texts, it is difficult to identify its concrete legal significance and to see it as anything more than a “moral and political idea”, as deplored by Carré de Malberg in 1915.