Solidarity Conceptions, Neo-Liberal Economics and Law as a Public Service

This chapter examines prominent solidarity conceptions used in legal discourses in the context of unfair economic arrangements, typically associated with neo-liberalism. It finds that prominent solidarity conceptions are from a legal theory perspective either circular, redundant, or too aspirational. The conceptual shortcomings of solidarity are echoed in standard policy proposals to counter and unwind neo-liberal economic arrangements. Those proposals typically involve imposing new legal duties on dominant economic actors and states, making their effectiveness depend on adopting new national, regional and international laws, on compliance by dominant economic actors, and on enforcement by legal authorities. The proposals imply that the normative resources for change lie outside existing law. This chapter explores an alternative understanding of law based on existing positive law: law as a public service. Dominant economic actors rely on law as a public service. They need legal authorities, especially judges, to declare their neo-liberal economic arrangements legally valid and enforceable. Positive law already offers judges the normative resources to refuse the help of the law whenever neo-liberal economic arrangements structurally lack minimal reciprocity and fairness. Rather than waiting for a global social solidarity movement, judges of Western civil and commercial courts can already make a difference.