ABSTRACT
But enforceability is not the whole problem, it is merely symptomatic of the problem. What about the content for example? The content of solidarity cannot be argued in law except in terms of claims and counter-claims, what solidarity is not. Paradoxes spring up everywhere; we will explore them systematically when we discuss later how law ‘reduces’ solidarity in the ‘social’ and ‘material’ dimensions. Suffice it here to indicate how uncomfortably the ideal sits with its ‘realisation’ in law; how the purported ‘dialectic’ is constantly verging on ‘contradiction’; how, in Fullerian terms perhaps, the duty is undercutting the aspiration.24 The process of reconceiving the ideal legally forces anything but the thinnest notion of solidarity to continually slip away in the face of legal assumptions that cannot be negotiated or imagined away. And it is no thin notion that Unger has in mind; as he pointed out nearly twenty years ago, for him solidarity is nothing short of:
Unger is here criticising a type of legal system that exhibits formality and rigidness, so it would do his argument injustice to generalise it. But let us at least note the tension: solidarity involves a ‘reaching out’ to the other person, an element of suppression of the self and sacrifice towards the other, and law by its very structure as a means of litigating competing claims, its operating of dispositive concepts and the win-or-lose principle, violates the self-effacing moment underlying the encounter of solidarity.
