Caring, law, and solidarity—on the need for reorientation

Abstract

What significance does care have in law? How is solidarity understood in the relationship between individuals, society, and the state, and what needs to be changed? How should the welfare state promote care and caring relationships by granting solidary forms of support and enabling beyond the already existing but insufficient rights and services? These questions guide the analysis; German law and EU law are important points of reference, but the general argument transcends national borders and jurisdictions. It results that solidarities are ambivalent, the recognition of care-related rights and provision of care services and infrastructures is insufficient. There is a need for care policies based on solidarity. Although there are numerous fragmented regulations in family, labour and social law with regard to care and care needs, these are often inadequate. Coherent and solidarity-based care policies, such as those developed by some countries and international organizations, can serve as a stimulus and inspiration for social and legal policies in Germany and elsewhere. Although the contents of solidarity as a legal principle is rather indeterminate and open to the discretion of the state, solidarity can be an important part of the argument, because the social support and organization of care is in the interest of society and of all those who need or provide care and contribute to the public good.

Solidarity is a frequently invoked topos in society and the welfare state, not only as a moral and ethical obligation, but also—in very different ways—as a legal principle. In contrast, the connection between care, solidarity, and law has been little discussed. The Covid-19 pandemic brought the social significance of care work—paid or unpaid, in social services, families and other caring communities—to the fore as 'systemically relevant'; solidarity in crisis mode was in demand. However, it remained with singular declarations of solidarity; a fundamental reflection and improved social and legal recognition of care activities and relationships failed to materialize. Coping with inadequately covered care needs in the 'care crisis' was and continues to be largely assigned to the 'private sphere' and thus predominantly to women.

Against the ambivalences of law and society in dealing with care work, a socio-political, socio-ethical, and legal argument is developed here that takes the idea of solidarity as its starting point—all people are more or less dependent on care and support from others in the course of their lives and need solidarity as mutual support and standing up for one another.¹ Most people also care for others at times, and enabling and supporting caring activities and relationships is a social and welfare state task. Desirable socio-political goals are improved social and legal recognition of care and the enhancement and increased visibility of paid and unpaid care activities, particularly in the areas of childcare and care for people in need of care.² This is the content of care policies that have developed in some countries and by a few international organizations. With a view to the law, a plea is made here for a cross-sectional subject of the 'law of care activities and relationships', in which the currently fragmented aspects of the law on care are brought together and further developed. Enabling and supporting care should be formulated as a task for society as a whole and for the welfare state at all levels of law, including constitutional law.

Solidarity is not only a moral and socio-ethical principle, but also has significance in law. What significance can solidarity as a legal principle have for the development of a right to give and to receive care and for caring and the law in general? Although the principle of solidarity has been discussed in legal terms with regard to the welfare state and European law, it has not yet been systematically interpreted with regard to care and caring relationships. Is the legal principle of solidarity suitable as a unifying bond and interpretative maxim of caring and the law? Is the concrete form of legal solidarity and solidarity obligations (or their absence) in this area substantiated or insufficient?³ Does the distribution of rights and duties, welfare state support and the provision of social services and infrastructures correspond to a modern, care-oriented understanding of solidarity? German law and EU law are important points of reference, but the general argument transcends national borders and jurisdictions.

First, the central concepts of care work and the principle of solidarity are explained with regard to the law (I.). This is followed by a description of how the principle of solidarity is shaped in sub-areas of German law, with a focus on constitutional law, European law, social law, family law and international law. Whether and how care work is legally taken into account is analysed (II.). Finally, the necessity of developing an improved welfare state recognition of care work in law and solidarity-based care policies is discussed (III.).

I. Care work, solidarity, and law—terms and references

Care for others and mutual support (care) in caring relationships, be it for children, in partnerships, between generations and in other relationships, are universal; everyone is dependent on it, and most people also care for others themselves at times. The concept of care,⁴ which has become established internationally in many disciplines, is based on this understanding of interdependence and support. In the German language, the terms Sorgearbeit, Sorgetätigkeiten or Fürsorge are also used. Care encompasses the socially and individually necessary forms of care, support, supervision and nursing of people, whether paid or unpaid (care activities, family work, caring practices, personal services). This is essential for social cohesion and the individual development of each person; autonomy is relational. At the same time, power relations and dependencies, hierarchies and inequalities shape caring relationships.

The concept of solidarity,⁵ used in this article, characterizes standing up for one another in a group in the tension between the individual, individual interests and community interests. Solidarity involves common goals, interests or emotions and the willingness to make a contribution in order to create this common good. This also includes the expectation of receiving support when it is needed. This may well be in the well-understood self-interest of individuals who are mutually dependent on each other and recognize this, as everyone may at some point be dependent on the solidarity of others.

The historical roots of the concept of solidarity can be found in Roman law; obligatio in solidum was understood as the joint and several liability of members of a family or another joint liability community. This civil law concept of joint and several liability can be found in Roman law, common law, the French Civil Code 1804 and the German Civil Code 1900.⁶ The meaning of the term has changed considerably since the end of the 18th century; the concept of solidarity has also been applied to the areas of morality and ethics, society, and politics. In the first half of the 19th century, the concept of solidarity joined the fraternité of the French Revolution and became a political program concept with legal content, as the Declaration of Civil Rights of 1793 declared public support for the poor to be a 'sacred debt' and the droit à la subsistence to be part of social reformist fraternity.⁷ Comte and Durkheim developed a sociological concept of solidarity; Durkheim historicized the concept of solidarity in social contexts and distinguished between 'pre-modern', mechanical solidarity in communities based on similarity and community, and 'organic solidarity', which ensures the social cohesiveness and integration in a society with a strong division of labour and tendencies towards individualization. Solidarity is seen as establishing and creating the inner cohesion of a group, community, or society on the basis of shared values, traditions and, convictions and includes the willingness to stand up for one another and, if necessary, to make a contribution and show loyalty in favor of others. In return, the community of solidarity promises help when needed and in times of need. Solidarity is therefore also in the self-interest of the individual members of the group and contributes to the cohesion, integration and order of a society.

According to the current understanding, the principle of solidarity describes the mutual relationship and dependency of members of society on each other (factual level) and the obligation to support and help each other (normative level) if necessary, as well as the solidarity principle derived from this for shaping the state, economy, and society.⁸

What role does the law play in the institutionalization of solidarity? Beyond the significance of the principle of solidarity as a social and ethical norm, which is linked to moral, religious and other expectations of behaviour, it can also solidify into an institution or legal norm. Forms of solidarity and solidarity communities have long since emerged, many of which also include elements of coercion and legal obligation. Historical examples include the legal rules on marriage, family and kinship as well as the institutions of social insurance or the progressive tax systems with the obligation of all taxpayers to finance state tasks in the interests of the common good. In Germany, for example, social insurance emerged as compulsory insurance from voluntary aid associations and mutualities, in which workers and comrades joined together for various vicissitudes of life and made contributions, 'one for all, all for one'. Funding—whether through social security contributions or through taxes in a progressive tax system—is based on the idea that individual contributions are graduated according to ability and income level, while support and benefits are granted to each member according to need and when certain risks occur. The welfare state has taken on many tasks of assistance in emergency situations as well as tasks of 'public services' and the provision of collective goods and infrastructure, which can be understood as an expression of overall social solidarity. However, the principle of solidarity has lost much of its significance in German legal and political doctrine, while the principle of the welfare state has gained in importance, to which a considerable part of the function of the principle of solidarity has been transferred.⁹ Mutual compensation funds as solidarity communities include elements of redistribution that can take very different forms and need to be analyzed in more detail with regard to social (in)equality. Solidarity always includes dimensions of equality and inequality, of exclusion and inclusion through norms that regulate who belongs and who is excluded, be it within certain communities, the nation state or beyond, transnationally, internationally or globally.

How can care and the principle of solidarity be related to each other? The starting point of care ethics is the assumption that all people are vulnerable and dependent on one another.¹⁰ Autonomy is therefore relational; there are varying degrees of interdependence in the course of life. Dependence on others and care needs require support from others, ie solidarity-based action or welfare state interventions. In parent–child relationships, families, kinship and various forms of relationships, this support is granted as de facto solidarity and precedes the law, but it is sometimes denied or is susceptible to crises. Parent–child relationships, marriage, kinship, and family have therefore long been classic solidarity communities with institutionalized solidarity obligations under family and inheritance law,¹¹ which can also be enforced by legal coercion, particularly in the area of financial obligations. They include care duties and tasks of care, education and support, which influence gender and class inequalities.

In complex societies, new forms of solidarity and social security became necessary in the wake of industrialization, which developed into social insurance and the welfare state. However, these new institutionalizations of solidarity were to a certain extent 'care-blind', presupposing a gender-specific division of labour in the developing model of the 'carefree worker' and unpaid care work by women in the 'private sphere', as was also institutionalized in the model of the 'breadwinner/housewife marriage'. Social services and infrastructures were part of the assumption of care tasks by the welfare state, but the legal regulation of care work and care-related rights remained fragmented and inadequate. This limited understanding of social and welfare state responsibility for supporting and enabling care activities and relationships needs to be overcome through an expanded understanding of solidarity.

Can solidarity as a legal principle guide and organize care policies in this sense? These considerations are intended to offer approaches for further analysis and legal dogmatic deepening.

II. The principle of solidarity in law (constitutional law, social law, family law, European law) and the ambivalences of recognizing care in law

Solidarity is not a legal term in German law; solidarity is not used or legally defined as a concept in laws or other legal norms. However, it is a legal principle. Legal principles are derived from the overall legal system, but are only partially regulated by law. They must be further specified and shaped by legal norms, as a legal principle as such is not yet subsumable.¹² The content and significance of the principle of solidarity will therefore be discussed further in the context of different areas of law. It begins with a brief description of the historical development of the principle of solidarity in law and social policy. This is followed by an examination of German constitutional law (1.), supranational European law (2.) and descriptions of the ambivalences in the legal recognition of care work and care needs in German social law (3.) and family law (4.). Finally, care is discussed as a human right in international law (5.).

Historically, it was the French legal scholar Léon Duguit who, at the beginning of the 20th century, further developed Durkheim's sociological assumptions¹³ into a theoretical framework for a constitutional justification of the principle of solidarity¹⁴ and introduced it into French legal doctrine, which influenced later European developments. Based on the factual solidarity or mutual social dependence of individuals, he argued for a social norm of solidarity, which the state had to concretize or 'materialize' as a basic principle through its means and power in order to make it available as a 'public service' for the realization of increasing mutual social dependence.

At the end of the 19th and beginning of the 20th century, solidarity and the tasks of the state and public service were important topics in the socio-political debate. The welfare state that emerged at the end of the 19th century, which replaced private charity, alms and caritas with social services and social rights, largely excluded a central area of mutual solidarity through caring activities in intergenerational relationships and partnerships from the emerging social law. Moreover, caring for children or relatives in need of care, as well as everyday care and housework, were seen as a quasi-'natural' task for women and legally assigned to them.¹⁵ This was taken for granted as unquestioned 'private solidarity', which was socially exploited and whose costs and associated risks were only partially legally compensated within marriage and kinship. On the other hand, family and marriage-related social benefits were introduced gradually, particularly in social law, which guaranteed partial indirect protection for 'dependents' through derived rights that were linked to marriage, not to care work. These ambivalences and fragmentations characterize the legal regulation of care to this day.¹⁶

1. Solidarity in constitutional law

After the end of World War II, the principle of solidarity was explicitly mentioned in numerous constitutional texts in European countries, for example in the French, Greek, Italian and Polish constitutions.¹⁷ At the level of European politics, the principle of solidarity played an important role (for example in the rhetoric of the French Robert Schuman). The German Basic Law of 1949 (abbreviated GG for Grundgesetz in the following), on the other hand, does not explicitly mention the principle of solidarity. However, several state constitutions of eastern German states, which were adopted after reunification in 1990, explicitly mention the principle of solidarity.¹⁸ The draft constitution of the Board of Trustees for a reform of the German Basic Law after reunification also contained the formulation in the preamble that the aim was to ‘renew a democratic and solidary community in which the well-being and strength of all arise from the protection of the weak’,¹⁹ but this proposal did not find a majority.

A. Solidarity and the constitutional welfare state principle

Although not explicitly mentioned in the Basic Law, the idea of solidarity is nevertheless anchored in constitutional law²⁰ in the principle of the welfare state (‘social federal state’, Art. 20 I Basic Law, ‘social constitutional state’, Art. 28 I Basic Law), the protection of human dignity (Art. 1 I Basic Law) and the principle of equality and the prohibition of discrimination (Art. 3 Basic Law) ²¹ which are committed to the idea of social equality.

How is solidarity interpreted under constitutional law, in particular within the framework of the principle of the welfare state and implemented by ordinary law? How much legally binding force follows from the 'principle without content'²² in its openness? To what extent are these fundamental social rights as subjective rights and entitlements to benefits, and to what extent are they welfare state objectives that limit or oblige the state in shaping the welfare state but do not grant any subjective rights?

Solidarity is not explicitly mentioned, but can be understood as the core of the welfare state principle. The welfare state principle pursues the goals of social security, social equality, and social justice. The case law of the Federal Constitutional Court emphasizes the importance of social equality and social security.²³ The principle of the welfare state in conjunction with human dignity gives rise to the welfare state's obligation to ensure the socio-cultural minimum subsistence level as a human right.²⁴ This includes ‘(…) also ensuring the possibility of maintaining interpersonal relationships and a minimum level of participation in social, cultural and political life (…), because the human being as a person necessarily exists in social relationships’.²⁵ This can be understood as an expression of the idea of solidarity, which underlies the Basic Law and the case law of the Federal Constitutional Court, which sees individuals as bound to and related to the community.²⁶ At the same time, this allows the legislator to restrict freedom and compel solidarity for a legitimate purpose within the framework of the principle of proportionality ‘for the maintenance and promotion of social living together within the limits of what is generally reasonable’,²⁷ also with the aim of enabling autonomy. This legitimizes compulsory social security membership. Social security thus also serves the common good.²⁸

Beyond the constitutionally guaranteed right to the subsistence minimum, hardly any further individual subjective rights can be derived from the principle of the welfare state in conjunction with the protection of human dignity in the Basic Law and the concept of solidarity.²⁹ The principle of the welfare state is a set of program principles, state objectives³⁰ and mandates for the legislator to act to safeguard the common good. The legislature has a broad scope for action, but no concrete obligations of the state are derived from it—with the exception of ensuring the minimum requirements for a dignified existence which the state has to guarantee.³¹ The specific content is subject to democratic negotiation processes and the legislator's freedom of design, dependent on the context and subject to change. The legislator has broad discretion in this regard. ³²

The provision of services of general interest (Daseinsvorsorge) is one of the tasks of the welfare state. These are services with a public purpose that are to be guaranteed by the state (Art. 20 I GG) and that are essential to ensure a dignified existence. According to the case law of the Federal Constitutional Court, this is a service ‘which the citizen needs in order to secure a dignified existence’.³³ This includes the classic areas such as the supply of water, electricity, power, etc to ensure the common good, but it should also encompass care infrastructures such as daycare facilities and nursing homes as well as forms of support for care work by relatives and in families as social forms of solidarity. A changed interpretation of the terms 'services of general interest' and 'subsidiarity', which takes appropriate account of the importance of care for the common good, is the order of the day.

B. Solidarity, participation, equality, and prohibition of discrimination in German constitutional law

Solidarity also has the purpose of enabling inclusion, participation and belonging.³⁴ The general principle of equality (Art. 3 I GG) and the special principles of equality (Art. 3 II and III GG) are intended to enable non-discriminatory participation. The constitutional principles of equality and prohibitions of discrimination often play a role in the legal and socio-political debates on improved recognition of (unpaid and paid) care activities and relationships. The constitutional prohibition of discrimination is based on the idea of equal participation without exclusion due to discriminatory characteristics and attributions. This is an essential component of the principle of solidarity; equality is not a neutral yardstick, but an integral part of the concept of the welfare state.³⁵

With regard to marriage, parent–child relations, kinship and other cohabiting relationships as communities of solidarity, constitutional problems in the case law of the Federal Constitutional Court are hardly ever addressed explicitly from the perspective of solidarity and the welfare state principle of Article 20 I of the Basic Law. In terms of constitutional law, related problems have been discussed in connection with the principle of equal rights and the prohibition of discrimination in Art. 3 II and III or negotiated as issues of intergenerational justice (Art. 20a GG)³⁶ and discrimination against families (Art. 6 I GG). The welfare state principle of Article 20 I of the Basic Law or the topos of solidarity are hardly mentioned explicitly. Questions of the recognition of care work and distribution issues often remain within the paradigm of the 'privacy' of family decisions on the division of labor and subsidiarity. This is irritating because the social significance of care work is enormous. Unpaid care work is the primary resource in the upbringing and care of children, in the support and care of people in need of care, chronically ill or disabled people.³⁷ Since care is still not easily compatible with a lifetime of continuous full-time employment, solidarity-based support in these communities through unpaid care work entails a number of disadvantages for those, mainly women, who perform unpaid care work.

Why are the contribution to the common good made by unpaid care work and the associated problems of justice not more strongly addressed as issues of social solidarity and (in)justice in distributional relationships? The dominant, grossly simplistic, and ideological depiction of the 'privacy' of the family obscures the contributions that families and predominantly women make to the common good through care work. When this is glorified and privatized as a 'natural' task, the extent to which solidarity obligations in marriage and family can be shaped or influenced by legal norms of family, tax, social, and labour law (especially financial support and maintenance obligations) is also forgotten. However, the institution of the family is not private, but a community of solidarity shaped by law.³⁸

2. Solidarity in European law

Due to the importance of legal norms of European law as supranational law, which must be implemented into national law, the significance of the principle of solidarity in EU law is first examined, as it is frequently used in EU law. The guiding question is whether conclusions can be drawn from the principle of solidarity under European law for the significance of the principle of solidarity in German law and for a solidarity-based care policy.

In 1950, Schuman spoke of 'de facto solidarity'³⁹ as the basis for the construction of Europe. Solidarity is often used as a fundamental concept and principle in European Union law. In Art. 2 TEU, solidarity, justice, and non-discrimination are named as fundamental values on which the Union is founded and to which the Member States must also adhere (Art. 7 TEU). Art. 3 (3) TEU also mentions solidarity between generations, solidarity, and equality between women and men; in addition to social solidarity, solidarity between Member States and solidarity and mutual respect between peoples are also mentioned. The title of Chapter IV of the European Charter of Fundamental Rights (ECHR) is 'Solidarity' and Articles 24–38 contain fundamental social rights that have different binding effects⁴⁰ and must be taken into account in German law. These include workers' rights, the prohibition of child labour, the protection of family and professional life, rights to social security and support, the right to health protection and program principles on access to services of general economic interest and consumer and environmental protection.

There is now extensive legal and political science literature on the principle of solidarity in EU law.⁴¹ This literature examines solidarity as a constitutional principle of the EU, as a legal principle between the EU Member States, as a structural principle of economic and political support, as well as solidarity as a fundamental value of the EU and as the basis of social rights and EU citizenship. However, the meaning of solidarity varies greatly in the respective contexts.

A. Care and solidarity in European law

Many policy areas in which care plays a significant role are not among the EU's areas of competence in which binding legal norms of European law can be adopted. However, within the framework of the limited competences, a series of measures have been taken and combinations of 'soft law' (recommendations as non-binding legal acts of the EU, Art. 288 TFEU) and action programs, formation of networks and monitoring policies have been used.

The gender care gap⁴² (the difference in the amount of time spent on unpaid care work between women and men) and political initiatives to overcome it are a focus of EU measures. The labour market-centric nature of EU competences had, in addition to important influences on national anti-discrimination law, the effect that the EU's equality and anti-discrimination policy was strongly focused on employed persons and non-employed carers could not derive any rights of their own from it.⁴³ According to the case law of the ECJ from 1983, the EU's equal treatment directive ‘is not designed to settle questions concerned with the organization of the family, or to alter the division of responsibility between parents’.⁴⁴

The unequal effects of taking on care responsibilities (especially childcare) have always been an issue for the EU. Within the framework of employment-centred anti-discrimination policies and legal acts, the effects and disadvantages resulting from the greater assumption of unpaid care work by women—for example in the concept of indirect discrimination⁴⁵ or within the framework of reconciliation policy—could only be addressed to a limited extent.⁴⁶ However, the EU took early initiatives to promote childcare in Europe, for example by establishing an EU Childcare Expert Network and recommendations⁴⁷ through to the 'Barcelona targets' as targets for participation rates in childcare, which were adopted by the European Council in 2002.

In 2022, the Council of the EU adopted a European Care Strategy and two recommendations on long-term care and childcare for the first time (recommendations 2022/C 476/01 and 2022/C 484/01). They are not legally binding, but contain reporting obligations for the Member States and recommend national strategies and plans or coordination mechanisms such as the appointment of a National Coordinator for Long-Term Care. These recommendations are part of the implementation of the European Pillar of Social Rights (EPSR) 2017. The objectives of the European Care Strategy are to improve access to affordable and quality long-term care through integrated approaches and to increase the opportunity to participate in accessible, affordable and quality early childhood education and care, reconciling work and private life for parents and people with caring responsibilities through the right to appropriate time off and flexible working arrangements and access to appropriate social services, as well as equal treatment and opportunities for women and men in all areas, particularly in terms of labour force participation and employment conditions (Principles 2, 9, 11, 18 ESSR).

In contrast, the EU Directive on work–life balance for parents and carers (EU 2019/1158) is legally binding; one aim is to facilitate care activities for employees and thereby promote equal rights; the legal basis was, among other things, Art. 33 ECtHR in Chapter 4 'Solidarity'. Rights to paternity leave, parental leave, and leave for carers are granted, as well as flexible working time arrangements for employees who are parents or carers. They do not go much further than the German legal situation, but the regulations on paternity/parental leave have still not been fully transposed into German law.

How should these developments be assessed? One thing is clear: care and caring responsibilities are on the EU agenda, and no longer just as childcare. This is seen as groundbreaking, as a substantial and transformative approach to equality⁴⁸—despite many restrictions. Daly describes the European Care Strategy as undoubtedly the EU's most important direct commitment to date in the area of long-term care⁴⁹ and welcomes the attention it has given to social services and the working conditions of employees in the care sector. The EU has established the link between solidarity, care work and law with reference to the legal bases of the Charter of Fundamental Rights of the EU and the European Pillar of Social Rights through the 'European Strategy for Care and Support'. What matters now is how this is implemented in the Member States and what influence this approach has on the public debate.

3. Care work and solidarity in German social law

Social law is the classic area of law in which solidarity was institutionalized and legalized. The birth of social law (in Germany, the introduction of health insurance in 1883 and accident insurance in 1884⁵⁰) was strongly influenced in the various countries by the labour movement and its demands for solidarity and social redistribution. Social insurance as compulsory social security also included elements of social equalization (and thus avoided the negative effects and inequalities of the insurance markets), which legitimized the general obligation to provide for the future and the creation of the solidarity communities of social insurance.⁵¹ The solidarity principle of social insurance as an expression of the principle of the welfare state and the principle of solidarity is inextricably linked to social equalization.

The risks associated with reproduction and care work were largely, but not completely, assigned to the private sphere by social security law in the early 1880s. The separation of the private and public spheres is constitutive of the gender order in bourgeois capitalist society. Care work, which was declared a 'private matter', was excluded from the 'public sphere',⁵² in which the struggles for solidarity and social security were fought. It was only later that some risks in the area of maternity and the protection of family members of insured persons gradually began to be covered by social insurance law om Germany.⁵³

This was criticized by the (divided) women's movement of the time, which had been fighting for the introduction of maternity insurance since the 1890s.⁵⁴ The social democrat Lily Braun originally called for maternity insurance for the entire population, financed by progressive income taxation. Motherhood was a social function that had to be secured by the state.⁵⁵ Even more far-reaching was Anita Augspurg's demand for a maternity pension for all mothers for one and a half years after giving birth.⁵⁶ Such demands were only realized at the end of the 20th century as part of the child-raising allowance introduced in 1986. In the social insurance system, the risks of working women due to pregnancy and childbirth were initially only covered to a limited extent by health insurance from 1883, and it was not until 1914, during the First World War, that more extensive maternity protection was introduced for reasons of war and population policy.⁵⁷ Working women were initially largely excluded from social insurance, which did not cover important areas of women's employment. Domestic servants and maids, home and farm workers were only included in social insurance cover in 1911. Solidarity was a topos in the socialist women's movement, which essentially referred to solidarity between female and male workers; international solidarity was also an issue.

In the further development of social security, the benefit entitlements of (married) employed insured persons were extended to dependent family members so that the model of the autonomous employed person without care obligations was supplemented by derived rights of the 'dependent' on the basis of the 'breadwinner/homemaker marriage' (survivors' pensions, free co-insurance of the spouse in health insurance). Unmarried mothers were and are excluded from this. The model of social protection was not based on the recognition of care work as such under social law, but was marriage based and not care related.⁵⁸

In the 1950s, solidarity was often publicly demanded in the context of debates on pension reforms as intergenerational solidarity and not primarily as solidarity with those individuals who perform care work or family work. The 1957 pension reform with significant increases in benefits under the banner of 'securing living standards' also improved the situation of non-working widows with legal entitlements to widows' pensions derived from marriage. However, individual pension entitlements independent of employment status as recognition of child-raising work were only introduced in 1986 as pension credits for child-raising periods of three or two years per child—an individual, care-related social benefit independent of marriage and thus a genuine innovation in the German social security system.⁵⁹

The introduction of the long-term care insurance in 1995 recognized the need for care as a socially insured risk and granted the person in need of care a care allowance, which they can pass on to unpaid home carers. For the unpaid home carer, contributions for accident and pension insurance are also paid by the long-term care insurance on application. This was a paradigm shift in the law in terms of recognizing the care needs of people in need of long-term care and providing—albeit inadequate—some cover for carers beyond the circle of close relatives. Despite a series of further reforms in the following years, which were intended to make it easier for family caregivers to combine work and care (Caregiver Leave Act and Family Caregiver Leave Act), the leave options for employed family caregivers and the low level of care insurance benefits are not sufficient to support family caregivers. Municipal support services and infrastructures are also inadequate. Care work in the care sector and care needs are insufficiently secured and recognized. Solidarity and justice are frequently invoked in connection with the socio-ethical and socio-political discussions about long-term care insurance.⁶⁰

4. Care work and solidarity in German family law⁶¹

The historical starting point in the German Civil Code (BGB), which came into force in 1900, was that household management and the care and upbringing of children were not regarded as a contribution by the wife to the family household under marriage law.⁶² The maintenance obligation was only understood to mean the provision of funds by the husband. The wife's obligation to manage the household was a personal effect of marriage; the wife's care and support of the children was part of the parental authority that was vested in the husband and was merely exercised by the wife. The basic principle of the patriarchal marital family was the exchange of 'maintenance for obedience'.⁶³ Only in tort law did the value of domestic and family services appear when, in the event of the wife's death, the amount of compensation for damages to be paid to the surviving husband and children was to be determined.⁶⁴

A. The early criticism of the discrimination of custody activities in family law

Although this criticism is as old as the German Civil Code, it had no legal consequences until the end of the 1950s.⁶⁵ Demands for reform of marriage law were presented by Dr Marie Munk at the 33rd German Jurists' Conference in Heidelberg in 1924; she was the first woman to give a keynote speech at this annual event.⁶⁶

Socialist criticism was directed against the institution of marriage and the bourgeois family, while social forms of childcare and equal rights for working women were favoured. Alexandra Kollontai, for example, advocated a concept of love as 'comradely solidarity',⁶⁷ which included empathy and care work.⁶⁸ Women's movement activists demanded 'mothers' pensions' (especially in the United States⁶⁹). Since the late 19th century, debates and controversies about 'housework and its value: pay, revalue or abolish' have been virulent in the German women's movement.⁷⁰ Emilie Kempin demanded the recognition of ‘the mother of the family’s work’ within the framework of marriage law, in particular matrimonial property law. In 1905, the feminist Käthe Schirmacher called for an economic, legal, and social revaluation of housework and demanded that this work should be paid because it was productive and created value, but was exploited.⁷¹ Marianne Weber supported this view in 1912 in her essay on the evaluation of the housewife’s work. The social democrat Lily Braun⁷² developed a model of cooperative housing with centralized facilities for the collective provision of household services (cooking, washing, cleaning) and childcare, the 'One-Kitchen-House', but only a few housing projects with apartments and communal facilities were realized before the First World War.⁷³

B. Reforms in family law after 1945⁷⁴

It was not until the Equal Rights Act of 1957 that the care activities of housekeeping and providing for, raising, and caring for children were recognized in family law as the wife's own contribution to family maintenance (and child maintenance) of equal value. The unmarried mother of the child and her care activities, on the other hand, remained out of sight for much longer. The reform of matrimonial property law in 1958 and the introduction of the community of accrued gains, which granted a half share of the gains accrued during the marriage when marriage ended, were intended to recognize the wife's contribution to the standard of living and family income through housekeeping and care work; under maintenance law, these were recognized as 'equivalent maintenance contributions'. What was new was the assumption that the contributions of the wife and husband were 'different but of equal value'. The case law of the Federal Constitutional Court postulated the equivalence of the difference,⁷⁵ as ‘both spouses are in principle (…) entitled to an equal share of the jointly earned income’ because ‘the contributions they each make in the context of the work and tasks they have jointly decided on are to be regarded as equivalent’.⁷⁶ The aim of Article 3 II sentence 2 of the Basic Law was seen as ‘to put an end to the legal undervaluation of women's work in the household and family and to ensure that it is given fair consideration’.⁷⁷ But the care activities of unmarried mothers were ignored and devalued in the debate of the 1950s and 1960s.⁷⁸

In the case law of the Federal Constitutional Court, the value of care work as a contribution to maintenance within marriage was emphasized in the context of the principle of equal rights in Article 3 II of the Basic Law, but in a conservative view of marriage and family.⁷⁹ Social solidarity was not explicitly mentioned in the discourse on family law, but is addressed as a distribution problem within private relationships in the context of debates on equal rights and discrimination against (married) women and mothers.

C. Family law reforms since the 1970s, care work and 'post-marital solidarity'

The reform of marriage and divorce law in 1977 and the elimination of fault divorce through the 'principle of breakdown of marriage' as a ground for divorce in 1977 created the possibility of a long-term post-marital maintenance claim regardless of the attribution of 'fault'.⁸⁰Caring was only a prerequisite for entitlement in some cases of post-marital maintenance (in particular maintenance due to caring for a child in accordance with § 1570 BGB). The duration of post-marital maintenance claims, the scope of the divorced partner's 'earning obligations', and the legitimacy of post-marital maintenance claims due to caring activities have been an ongoing issue since the 1977 reform, which has been discussed under the heading of 'post-marital solidarity'.⁸¹ However, neither the concept of solidarity nor that of personal responsibility (§ 1569 BGB) say anything about the exact scope of legal obligations. Maintenance law, in particular the amount and duration of post-marital maintenance obligations, maintenance for a caring parent and child support are highly controversial.

The 2008 reform of maintenance law equalized the duration of the maintenance claim for childcare for unmarried and divorced parents and significantly restricted it as a post-marital maintenance claim.⁸² After the Federal Constitutional Court ruled in 2006⁸³ that the lower entitlement to childcare maintenance for the caring mother/father who is not married to the child's other parent was unconstitutional as discrimination against non-marital children under Article 6 V GG, the entitlement to childcare maintenance under Section 1615l BGB was gradually extended. The result of the 2008 maintenance law reform was a small improvement for the parent caring for the non-marital child and a considerable deterioration for the divorced primary carer. This has considerably reduced 'post-marital solidarity' and increased the employment obligations of the parent providing care within the framework of maintenance law. These developments point in the direction of a normative model of the 'full-time employed mother of a child from the age of three' for single and divorced parents with caring responsibilities. This leads to high burdens and poverty risks, despite the fact that the childcare infrastructure is still not developed to meet demand for full-time places and insufficient time rights for employees with caring responsibilities. Solidarity with single parents at risk of poverty thus remains the task of means-tested welfare payments.

5. Care and solidarity in international law

What role does solidarity play in international law⁸⁴ in the conflicting relationship between national sovereignty and cooperative solidarity, between transnationally organized particular interests of states and groups on the one hand and norms of global justice and global common good⁸⁵ on the other? Social rights as human rights and solidarity are not congruent, because social rights based on international treaties are first and foremost directed at states.⁸⁶ But even if solidarity norms and their enforceability in international law are relatively weak despite their many manifestations,⁸⁷ they have nevertheless gained an important dimension in human rights protection, particularly through United Nations conventions and the International Labor Organization (ILO). At this point, the discussion is limited to some of the norms of international law that deal with care work and relationships, solidarity with care givers and care takers, and relationships between states, society, and those who provide or need care work.⁸⁸ The CEDAW⁸⁹ Convention is important due to the pronounced gender dimension of this topic. More recent conventions such as the UN Convention on the Rights of the Child or the UN Convention on the Rights of Persons with Disabilities go into more detail on care rights, relationships and the obligations of the signatory states to guarantee them. The Social Covenant (CESCR) and conventions of the International Labour Organization (ILO) contain employment-related rights for caregivers in formal and informal working relationships.⁹⁰ At the most recent International Labour Conference in 2024, the ILO adopted a resolution 'Resolution concerning decent work and the care economy' (ILC 112/Resolution V), which calls, among other things, for the 'mainstreaming' of care and care-related rights in social security and occupational health and safety and calls for coherence and coordination of corresponding policies.

The United Nations has not yet issued a general recommendation or comparable document that summarizes the various aspects of care work, migration, and human rights. This is the direction taken by the member states of the Regional Conference on Women in Latin America and the Caribbean at their 2022 conference, which adopted the 'Buenos Aires Commitment',⁹¹ an intergovernmental agreement that places care at the center of a sustainable and gender-equitable development model. The approach supports measures in various areas of society to overcome the unequal gender-specific division of labour in the direction of a fair social distribution of care within the framework of a development model that promotes gender equality in the economic, social, and environmental dimensions of sustainable development. Care is formulated as a right to provide and receive care and to exercise self-care. What exactly this right means is the subject of debate. Two states, Canada and the USA, pointed out in their declarations on the occasion of the adoption of the Buenos Aires Commitment that ‘a right to care’ is not yet established in customary international law and international treaty law and has no established international meaning.⁹² In March 2024, at the request of the Argentinian government, a three-day hearing of experts and associations was held before the Inter-American Court of Human Rights to prepare an opinion of the court on the topic of the 'content and purpose of the 'right to care' and its interrelationship with other rights'. In Latin America, care policies and the right to care are a prominent topic. The constitutions of Ecuador, Venezuela, Bolivia, and the Dominican Republic recognize the value of unpaid domestic work; and several Latin American countries, particularly Uruguay, are developing comprehensive care systems. ⁹³

This discussion is also being held with regard to international organizations such as the International Labour Organization (ILO) and the EU and its European Care Strategy.⁹⁴ However, a care policies strategy is barely developed in Germany. There is no subjective right to dignified care in the Basic Law; the Basic Law does not contain any explicit basic social rights.⁹⁵ Existing care-related rights in social law and in family law are highly fragmented and ambivalent.

III. Caring and the law—ambivalent solidarities, the insufficient recognition of care and the need for a care policy based on solidarity

What significance does care have in law? How is solidarity understood in the relationship between individuals, society, and the state, and what needs to be changed? How should the welfare state promote care activities and relationships by granting solidary forms of support and enabling beyond the already existing but insufficient rights?

Solidarity concepts play a role in various areas of law as a 'common theme'⁹⁶ (particularly in social and family law and in EU law). In constitutional law, the case law of the Federal Constitutional Court has concretized the principle of solidarity in the interpretation of the principle of the welfare state (Art. 20 I GG, Art. 28 I GG) in conjunction with the protection of human dignity (Art. 1 I GG). However, the case law on the general principle of equality (Art. 3 I GG) and the equality principle (Art. 3 GG) are also an expression of the principle of solidarity, as they are intended to enable non-discriminatory participation and belonging.⁹⁷ The principle of intergenerational justice (Art. 20a GG) and the case law of the Federal Constitutional Court on the welfare state's obligation to support families⁹⁸ (Art. 6 I GG) can also be understood as an expression of the legal principle of solidarity. However, with the exception of securing the socio-cultural minimum subsistence level, hardly any subjective rights can be derived from the principle of the welfare state, as it is the state that is initially obligated. The state has a wide margin of discretion in shaping and implementing the principle of the welfare state. EU law, on the other hand, specifies social solidarity and the social rights based on it more precisely, but the EU has only very limited powers to regulate social and family benefits, mainly in the area of coordinating social law and employment-related anti-discrimination standards.

To date, there has been no legal norm at a higher level—in the German Basic Law or in EU law—that formulates the facilitation and welfare state support of care activities and the provision of care services by the welfare state as a task for society as a whole and an obligation of the welfare state. At EU level, informal care and family members were mentioned as carers for the first time in the 'Work-life balance' Directive 2019/1158 EU, but this has not led to an expansion of carers' rights when transposed into national law in Germany. The 'European Care Strategy' for long-term care and early childhood care published by the EU Commission in 2022 is positive, but as a legally non-binding recommendation that the member states are to implement in action plans, its impact in Germany has so far been very limited. Nevertheless, the importance of soft law and the associated reporting obligations of the member states on their compliance should not be underestimated in terms of their impact on the public, the socio-political debate and the interpretation practice of the courts.

With a view to law and society, the question was raised as to how care is organized, supported or devalued by the welfare state and what rights are associated with this. The legal areas of social and family law were examined as examples of the legal recognition and organization of care work and relationships in these fields. Other undoubtedly important areas, such as labour law and working time regulation, could not be considered in detail here. To date, German law and policy have lacked a comprehensive care strategy that brings together the approaches in sub-areas.

As a legal principle, solidarity can be based on various constitutional norms and standards of international law, in particular the principle of the welfare state, human dignity, the general and special principles of equality and the idea of participation. Participation, non-discrimination, and gender equality are important goals for closing the care gap. The ambivalent and contradictory regulation of care in social and family law, which has been analyzed in more detail, can be criticized on the basis of the principle of solidarity with the argument that the labeling of many care tasks as a 'private matter' contributes to the disadvantage and discrimination of care work and that many care needs are therefore also insufficiently covered. The legal principle of solidarity goes further than the principle of the welfare state, as it is not only the state that is the addressee, but can also be used as a guiding principle for the organization of other solidarity communities (for example in family law) when it comes to the recognition of unpaid care work (childcare, education, nursing, etc), which is not only in the private interest, but creates a public good.

As a socio-ethical and legal principle, solidarity can be an important part of the argument, because the social support and organization of care as part of the welfare state and social rights are in the interest of all those who need care themselves or care for others in the course of their lives. Building on this, the idea of a caring society and a caring right should be systematized. Although there are numerous fragmented regulations in family, labour, and social law with regard to caring activities and care needs, these are ambivalent and often inadequate. From the perspective of caring societies⁹⁹ and caring and the law, they should be brought together and developed further. Coherent care policies, such as those developed by some countries and international organizations, can also serve as a stimulus and inspiration for social and legal policies in Germany and elsewhere.

Footnotes

Funding

The article was written during my stay as fellow at the Wissenschaftskolleg Berlin (Institute of Advanced Studies) 2023/2024; besides the fellowship, no direct funding was given

Ethics approval

Not applicable in this case.

Conflicts of interest statement. No conflicts, not applicable.

Acknowledgements

Thanks to the Wissenschaftskolleg Berlin for the fellowship 2023/2024 during which the article was written. Many thanks to colleagues and friends who generously devoted time for discussion: Barbara Prainsack, Dieter Grimm, Eva Kocher, Lorena Poblete, Harry Willekens, Carolin Voithofer, Michelle Cottier, Michal Kravel Tovi, Yanfei Sun, Bin Xu, Hendrik Wagenaar.