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Ius Comparatum – Global Studies in Comparative Law
Eri Kasagi Editor
Solidarity
Across
Generations
Comparative Law Perspectives
Ius Comparatum – Global Studies
in Comparative Law
Volume 49
Series Editors
Katharina Boele-Woelki, Bucerius Law School, Hamburg, Germany
Diego P. Fernández Arroyo, Institut d’Études Politiques de Paris (Sciences Po),
Paris, France
Founding Editors
Jürgen Basedow, Max Planck Institute for Comparative and International Private
Law, Hamburg, Germany
George A. Bermann, Columbia University, New York, USA
Editorial Board Member
Joost Blom, University of British Columbia, Vancouver, Canada
Vivian Curran, University of Pittsburgh, Pittsburgh, PA, USA
Giuseppe Franco Ferrari, Università Bocconi, Milan, Italy
Makane Moïse Mbengue, Université de Genève, Geneva, Switzerland
Marilda Rosado de Sá Ribeiro, Universidade do Estado do Rio de Janeiro, Brazil
Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law,
Freiburg, Germany
Dan Wei, University of Macau, Macau, China
As globalization proceeds, the significance of the comparative approach in legal
scholarship increases. The IACL / AIDC with almost 800 members is the major
universal organization promoting comparative research in law and organizing con-
gresses with hundreds of participants in all parts of the world. The results of those
congresses should be disseminated and be available for legal scholars in a single
book series which would make both the Academy and its contribution to compar-
ative law more visible. The series aims to publish the scholarship emerging from the
congresses of IACL / AIDC, including: 1. of the General Congresses of Comparative
Law, which take place every 4 years (Brisbane 2002; Utrecht 2006, Washington
2010, Vienna 2014, Fukuoka 2018 etc.) and which generate (a) one volume of
General Reports edited by the local organizers of the Congress; (b) up to 30 volumes
of selected thematic reports dealing with the topics of the single sections of the
congress and containing the General Report as well as the National Reports of that
section; these volumes would be edited by the General Reporters of the respective
sections; 2. the volumes containing selected contributions to the smaller (2-3 days)
thematic congresses which take place between the International Congresses (Mexico
2008; Taipei 2012; Montevideo 2016 etc.); these congresses have a general theme
such as “Codification” or “The Enforcement of Law” and will be edited by the local
organizers of the respective Congress. All publications may contain contributions in
English and French, the official languages of the Academy.
More information about this series at http://www.springer.com/series/11943
Académie Internationale de Droit Comparé

International Academy of Comparative Law
Eri Kasagi
Editor
Solidarity Across Generations

Comparative Law Perspectives
Editor
Eri Kasagi
Center for Comparative Labour and Social
Security Law (COMPTRASEC, UMR
5114)
University of Bordeaux
Bordeaux, France
ISSN 2214-6881 ISSN 2214-689X (electronic)

Ius Comparatum – Global Studies in Comparative Law
ISBN 978-3-030-50546-2 ISBN 978-3-030-50547-9 (eBook)
https://doi.org/10.1007/978-3-030-50547-9
© Springer Nature Switzerland AG 2020

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Preface
This book is the outcome of the General Congress of International Academy of

Comparative Law, held on July 22–28, 2018, at Kyushu University (Fukuoka,
Japan). The congress has tackled numerous important and topical legal questions
from a comparative perspective, including that of “solidarity across generations,” a
topic that we will discuss in this volume. In the context of aging population, many
countries are facing a challenging matter of reconfiguration of different types of
solidarity between generations. The comparative and comprehensive analyses of the
ways each country tries to answer this question, in combining the solutions of civil,
social, and public laws, give us some clues to deal with this complex issue.
This volume includes 13 chapters, based on a general report as well as individual
national reports, which were prepared for the abovementioned congress and subse-
quently updated in 2019. Spanish chapter was submitted afterwards, for publication.
Following the general report (first part), the contributions in the second part princi-
pally look at solidarity through different pension systems. The third part is composed
of the contributions on different types of solidarity, facing the needs of elderly
people, particularly that of long-term care. The questionnaire prepared for national
reports is included at the end of this book.
It has been a great pleasure and honor for me to work with so many experts in
different fields of law, in treating very exciting questions concerning solidarity
across generations. As this topic is relatively new and not related directly to classical
legal questions, we started our collective work in trying to identify and define legal
questions that this topic might cover. This difficult but extremely stimulating work
would not have been possible without the continuous collaboration with all the
national reporters for almost 2 years from the end of 2017. I would like to express my
sincere and profound gratitude to all the colleagues who have participated in the
congress as well as in this volume, with whom I strongly hope to have other
occasions to work together in the future.
I would like to convey my special thanks to Prof. Katharina Boele-Woelki, Prof.
Diego P. Fernández Arroyo, the President and Secretary-General of the International
Academy of Comparative Law, for their kind support and encouragements, and also,
v
vi Preface
for having accepted to include this volume in the honorable Ius Comparatum series.
Many thanks to Alexandre Senegacniki for his kind help and advices for the
organization of our panel at the congress, as well as for this publication. I also
would like to express my gratitude to my former colleagues of Kyushu University,
Prof. Toshiyuki Kono as well as Prof. Mariko Igimi, for their kind support and
advices for this work. Last but not least, I would like to express my sincere gratitude
to Abdus Salam Mazumder, Anitha Chellamuthu as well as Anja Trautmann at
Springer for their warm encouragement in realizing this book.
Bordeaux, France Eri Kasagi

Contents
Part I General Report

Solidarity Across Generations from the Perspective of Comparative
Law: Reconfiguration of Different Types of Solidarity in the Context
of an Aging Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Eri Kasagi
Part II Solidarity Through Pension Systems

Elements of Generational Solidarity in the German Pension System . . . . 37
Constanze Janda
Beyond the Formal Principle of Intergenerational Sustainability
in the Italian Social Security System . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Michele Faioli
Les réformes des pensions en Belgique au regard du droit à la
sécurité sociale et du principe de standstill prévu à l’article 23 de la
Constitution belge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Elisabeth Alofs and Guido Van Limberghen
La Solidarité Entre Générations Au Sein Du Système De Retraite
Français . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Laure Camaji
Intergenerational Solidarity in the Spanish Social Security System . . . . . 115
Juan Antonio Maldonado Molina
Le Principe de la Solidarité entre Génération Appliqué au Régime
Brésilien de Sécurité Sociale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Marcelo Leonardo Tavares
Solidarity Across Generations in the Japanese Public Pension System . . . . 151
Masahiko Ohta
vii
viii Contents
Part III Different Types of Solidarity Facing the Needs

of Elderly People
Long-Term Elderly Care, Family and Money in Ageing Finland . . . . . . 181
Katja Karjalainen and Anna Mäki-Petäjä-Leinonen
Solidarity Across Generations in England and Wales . . . . . . . . . . . . . . . 201
Brian Sloan
The Elderly and Their Families: The Hungarian Context . . . . . . . . . . . . 221
Orsolya Szeibert
Support, Care and Employment for the Elderly: Examining the Law
and Policy in Singapore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Gary Chan Kok Yew
From Tradition to Transformation: How to Provide Long-Term Care
to the Elderly People in China? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Tianyu Wang
Solidarity Between Generations in South Africa: Contemporary
Challenges and Prospects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Chanda Chungu and Evance Kalula
Questionnaire on Solidarity Across Generations . . . . . . . . . . . . . . . . . . . 305

Part I
General Report
Solidarity Across Generations from
the Perspective of Comparative Law:
Reconfiguration of Different Types
of Solidarity in the Context of an Aging
Society
Eri Kasagi
Abstract This work will examine the issue, which is both universal and topical, of
solidarity between generations, focusing on forms of financial and material mutual
support within family, as well as collective redistribution, realized by state social
security systems. In contemporary demographic, social and economic contexts, we
are facing new legal questions, as well as rediscovering and reexamining classic
issues, in the field of pension law, family law, social law. Ultimately, through these
separate legal questions, the respective roles of State (public) solidarity and family
(private) solidarity need to be reconsidered and reconfigured. Comparative and
comprehensive analyses of the way that different countries answer these contempo-
rary questions about solidarity between generations in civil, social and public law
give us some clues to tackle this complex and challenging issue.
1 Introduction: Issues and Context
1.1 ‘Solidarity Across Generations’ from the Perspective

of Social and Family Law
This chapter deals with the issue of ‘solidarity across generations’ from a compar-
ative legal perspective, based on the national reports of 16 countries in different
We would like to thank Julie Zambau, research engineer at CNRS and director of documentation
centre of COMPTRASEC, as well as Tomoyo Sato, undergraduate student of Sophia
University, for their precious help in the realization of this work.
E. Kasagi (*)
CNRS, Centre for Comparative Labour and Social Security Law (COMPTRASEC UMR5114),
University of Bordeaux, Bordeaux, France
e-mail: eri.kasagi@u-bordeaux.fr
© Springer Nature Switzerland AG 2020 3

E. Kasagi (ed.), Solidarity Across Generations, Ius Comparatum – Global Studies in
Comparative Law 49, https://doi.org/10.1007/978-3-030-50547-9_1
4 E. Kasagi
regions of the world.1 This extremely topical subject2 covers many of the issues and
different disciplines of law, in the fields of both public and private law, as well as
other fields of social science. Among these various topics, we will study solidarity
across different generations in the form of mutual financial and material support or
responsibility within families, as well as in the form of collective redistribution
carried out by the state. This report will therefore deal primarily with issues
concerning state pension systems, family support duties towards elderly people in
need, as well as formal and informal long term care of elderly people, from the
perspective of social and civil (family) law. As a result, we will not deal with other
questions, specifically environmental ones, which could also be discussed in relation
to the issue of ‘solidarity across generations’.
1.2 Definitions of “Generation” and Different Types

of “Solidarity”
There are two key concepts in the topic of our discussion, which can have various
meanings and which therefore need to be clearly defined before we begin discussing
specific issues.
Firstly, we are, of course, aware that ‘solidarity’ is a polysemous term widely
discussed from many perspectives, especially in the field of sociology and, histor-
ically, in the French academic and political context.3 In this report, we use a simple
and broad definition of ‘solidarity’, already mentioned above: ‘mutual financial and
material support or responsibility between individuals as well as in the form of
collective redistribution carried out by the state.’ We will not be exploring in detail
the concept of solidarity itself. Within this large definition, two types of solidarity
1
(In alphabetical order) Belgium, Brazil, Cameroon (Virginie Yanpelda), China, Czech Republic
(Ondřej Horák, Jana Boulaouad), Finland, France, Germany, Greece(Helen Rethymiotaki), Hun-
gary, Italy, Japan, Singapore, South Africa, Spain(Gabriel García Cantero), United Kingdom
“England and Wales”. Among the authors of these national reports, 12 authors participate to this
book (Above indicated are the names of authors who don’t contribute to this book but had edited
national reports for the general congress).To edit this first chapter, we have examined all the
national reports of above mentioned 16 countries as well as the chapters which had been updated
or newly edited (in the case of Spanish law) after the congress. We will try to distinguish these
references in mentioning ‘national report’ when we would like to refer to the reports which had been
edited at the occasion of congress, and ‘chapter’ when we would like to refer to the updated or
newly edited version for this volume. We try to refer to the latter when it is possible. We have also
added several elements by ourselves, in that case in directly indicating their sources.
2
The issues which will be treated in this report are relevant primarily for developed welfare states
with an aging population. The issues of environmental law are theoretically important in both
developing and developed countries, though the debates on these issues are more or less active in
different countries.
3
About Durkheim’s theory of ‘social solidarity,’ see Durkheim (1893). See also Bourgeois (1926),
Spiot (2015), Paugam (2011).
Solidarity Across Generations from the Perspective of Comparative Law:. . . 5
should be distinguished: private solidarity and public solidarity.4 Private solidarity

will be defined as solidarity at work within the family—family solidarity.5 On the
whole, private solidarity primarily develops spontaneously, without state interven-
tion. However, it can be made partly mandatory by legal provisions in a form of
‘support duty,’ as we will see later in Sect. 3. Public solidarity will be defined as
collective solidarity with state (or local government) intervention, which is orga-
nized, and often required by law, for the entire population of the country, as well as a
part of the population (workers, persons in need, etc.), sometimes at the regional
level. Some scholars use similar concepts, such as ‘social solidarity (solidarité
sociale)’6 or ‘collective solidarity (solidarité collective).’7 The typical example of
public solidarity is national pension systems, which will be one of our main topics.
The other concept which needs to be defined is ‘generation’. Here again we try to
define generation in a broad and flexible way as “groups of persons which are
distinguished or identified by the year of birth.” The exact definition of generation
and how different generations are divided can vary according to context. We also
speak of the ‘present generation,’ which includes all existing persons, as opposed to
the ‘future generation,’ which concerns those who are not born.
The difficulty of the issue of solidarity across generations, as we have defined it,
is the fact that the legal questions treated as well as perspectives on this issue in
different countries can differ dramatically according to the demographic, economic
and political contexts. This is why we will first briefly describe the different contexts
in which this issue is dealt with and debated in different countries, and then proceed
to focus on issues of social and civil law in the following three sections.
1.3 Different Issues in Different Demographic and Economic

Contexts
When considering solidarity across generations, the issues which are actively
debated differ largely depending on demographic and economic contexts. Of the
16 countries included in this report, the majority are experiencing a trend of aging
and waning populations—although of varying degrees and over different time
spans—which present (or could potentially present) issues and conflicts concerning
solidarity across generations. In these countries, the burden of supporting the older
generation has become increasingly heavy on younger generations, whether in terms
of contributions to the states’ redistribution and social benefit schemes, or in terms of
care support for the elderly members within a family. Cameroon is almost the only
4
Boissard (2014).
5
Without going into too much detail, there is some controversy about the political usage of this
concept, particularly in France and the French academic community. See Minonzio (2004), p. 8.
6
Lenoir (2011), p. 169. Vigneau (1999), pp. 51–81.
7
Maisonnasse (2016), Minonzio (2004), pp. 7–19.
6 E. Kasagi
country where the demographic situation does not raise this kind of question,8 and,
in fact, the issues of younger generations are a priority in public debates and social
policies without causing conflicts with the older generations.
The economic situation can also greatly affect the issues concerning solidarity
between different generations. In almost all 16 countries, we can observe a deteri-
oration of (at least) a part of the population’s financial situation, especially after the
world’s financial crisis of 2007, because of economic stagnation. The financial crisis
brought about a policy of austerity in many countries, especially in Europe, which
led to the reduction of some social benefits, which then further aggravated the
situation of these populations. In this context, a growing interest in the role of family
as a safety net can be seen in a lot of countries. Family solidarity across generations
can be imagined in two directions. Firstly, young adults, who often have more
financial difficulties at the beginning of their professional careers, are supported by
their parents, who own their place of residence and possibly also have a stable
income from pension schemes. Secondly, adult children, when they have a more
stable situation, financially support their elderly parents who have few resources and
who sometimes need to pay for health care or long term care services (see below).
1.4 Developed Welfare States or Countries with Limited

Social Expenditure
The issues concerning solidarity across generations can be very different from one
country to another depending on the national Social Security systems they have
developed. In other words, these issues are discussed very differently in well-
established welfare states—which constitute the majority of the countries examined
in this report—and in countries with limited social expenditure. The latter category
can be divided again into two groups, though this distinction is by no means rigid:
developing countries that are currently developing social security systems in the
wake of their economic development (China, Cameroon) on the one hand, and
countries that clearly promote a liberal ideology by keeping social expenditure and
redistribution relatively small (South Africa, Singapore).
For developed welfare states, the previously mentioned issue of the heavy burden
on the younger generation is especially controversial for social security systems,
notably pay-as-you-go pension systems, which require significant contributions or
taxes from younger generations. Social security systems set up in these countries
often guarantee elderly people a comfortable income, even compared to that of the
younger working generation. This fact—a success, in a sense, of the welfare state—
could create serious concerns/doubts for the younger generation about the legitimacy
and fairness of existing social institutions, especially in a context where this younger
8
The fertility rate in Cameroon is still around 4.63 in 2015, although it has decreased from 6 in
1976. The younger generation (0–24 years old) makes up more than 60% of the nation’s population.
generation is not sure they will enjoy the same living standards and economic
security when they are older. Furthermore, the classic categorization of elderly
people as vulnerable is not necessarily accurate in this context. The inversion of
the economic positions of younger and older generations is even more striking when
we consider the fact that older people are not always physically vulnerable at
retirement age, thanks to the overall improvement of the population’s physical
health, as well as significantly less arduous working conditions for the contemporary
worker.
In countries which favour a liberal ideology, the burden of collective solidarity on
the younger generation is marginal, especially as these countries do not have a
pay-as-you-go pension system. Therefore, the other issues, as the employment of
the elderly population, or the need for long-term care (LTC), which we will discuss
in the following paragraph, seem to draw more attentions in these countries.9
1.5 Appearance of a New Problem: Long Term Care (LTC)
Today, almost all those countries with an aging population are facing a new
challenge—a growing need for long-term care (henceforth LTC). LTC was, and
still is to some extent, invisible because of the presence of informal care, often
supplied by female family members. The increasing number of elderly people who
are in need of long-term care combined with the increase of female workers has
made this problem much more visible and calls for a solution.
This newly revealed problem raises the question of its nature: in other words, do
we consider LTC a private matter, or a public one? Certain countries consider LTC
to be at least partly a public matter, and introduce state or local initiatives to provide
care services or financial aid to elderly people in need of LTC. At the same time, the
importance of informal and family carers has never disappeared, even in the coun-
tries where state intervention exists. Compensation or support for these informal
carers therefore remains an important issue in a lot of countries.
1.6 Three Main Topics of Discussion
This is the complex and rapidly changing context in which the issues examined in
this report are debated. We will attempt to cover the various issues and the different
countries’ contexts by examining three main topics concerning solidarity across
generations from the perspective of comparative law.
Firstly, we will deal with public solidarity, which is actually achieved by man-
datory state pension systems. We will also tackle the question of reconciling the
9
See the chapter about Singapore in this volume.
8 E. Kasagi
interests of the younger and older generations, specifically by analyzing the possi-
bility for the legislative branch to cut existing pension benefits (Sect. 2).
Both the second and third topics concern the role of private (family) solidarity and
the relationship between private (family) solidarity and public solidarity. Specifi-
cally, one will focus on family duties in civil law to support the needs of elderly
family members, as well as the relationship between these civil law duties and social
welfare schemes (Sect. 3). The third question concerns the respective roles of public
and family support for elderly people who need long term care (LTC). This section
will examine public intervention for LTC, as well as the legal measures taken to
encourage, support and compensate informal care provided by family members
(Sect. 4).
2 Solidarity in Pension Systems
In contemporary welfare states, social security systems can play a role of redistri-
bution across generations, normally towards vulnerable generations—the elderly
and very young (children). This redistribution takes the shape of pensions, health
care and various benefits which are allocated to the elderly or to children. Among
these systems of intergenerational and public solidarity organized and enforced by
the state, pension systems are central to the national social policy of many countries
because of their importance to elderly people, as well as for the large part of
contributions and public spending they represent. This section will analyze solidarity
across generations operating within state pension systems.
2.1 Different Types of Pensions
Pension systems can be divided into several types according to different criteria,
such as the category (or categories) of people eligible for the system (all residents of
the country, employee, self-employed, public servant, general worker, etc.), rule of
affiliation (obligatory or voluntary), level of contributions and benefits (universal or
proportional to income), administrator (government, social partners, public or pri-
vate fund), and so on.
In terms of ‘solidarity across generations,’ one criterion is extremely meaningful,
much more so than the others listed above. Indeed, pension systems can be divided
into two groups according to the financial scheme that these systems use to guarantee
the pension benefit: tax-financed pensions or contributive pensions. Contributive
pensions can again be divided into two groups. The first is what is called ‘pay-as-
you-go’, where pension benefits for the older generation are financed directly by the
contributions of the younger, active generation. The second group, pre-funded
pensions, sees the individual (and sometimes his employer) contribute to his pension
continuously as he works, which he then receives some years later, based on what he
himself (or his employer) has provided to his account. Many countries combine
these three financial schemes, in order to either separate different levels of pension
(e.g., minimum and tax-based pension, basic pay-as-you-go pension, complemen-
tary pre-funded pension10), or to provide complementary financing within a same
pension system (e.g., introducing tax revenue to a primarily contributive pension
system, or providing a certain amount of funding to a primarily pay-as-you-go
pension system, etc.).
Among these different financial schemes, the pay-as-you-go scheme probably
best illustrates the idea of solidarity across generations,11 as it means the working
generation makes direct contributions in order to immediately finance the older
generation’s pension benefits. At first glance, this so-called intergenerational ‘soli-
darity’ seems to be a one-way contribution from the younger generation to the older,
as the working age population receives nothing from the retired population. There is
therefore no mutual help between these two generations. However, this system of
contribution legally and technically provides a right to a pension benefit for those
who contribute once they reach retirement age. And in reality, the working-age
population’s future pension will be financed by the next generation—the future
working-age population. The pay-as-you-go pension scheme thus creates a series
of virtual mutual contributions between several—at least three—generations, thanks
to the contribution of the working age population, as well as a legal and theoretical
right to a future pension.12
Inversely, the pre-funded pension scheme excludes the idea of solidarity across
generations, as it separates each contributing person’s individual pension account.
Therefore, in the countries which use a pre-funded financial scheme exclusively, the
pension systems do not foster solidarity across different generations as we define in
this contribution.13
The tax financed pension systems, on the other hand, provide a certain level of
solidarity across generations, as taxes are usually payed by the working population.
However, the level, as well as the actual content, of this solidarity differs greatly
according to the types of taxes which are used to finance the pension benefit. For
example, the older generation itself contributes to the pension when the benefits are
financed by a tax, such as consumer tax. Whereas with income tax, the contribution
made by the older generation is obviously much less significant.
10
Within the European Union, this three-layer model is considered somewhat standard, even though
there are some exceptions, such as the French pension system. See Del-Sol (2014), p. 627.
11
The French ‘Code de la sécurité sociale’ has been changed recently to declare that the pay-as-you-
go pension schemes is at the center of the social pact which unites generations and the goal of this
pay-as-you-go system is to create solidarity across generations (Code de la Sécurité Sociale, L. 112-
2-1). See Camaji in this volume.
12
Kasagi (2020).
13
We can mention Singapore and South Africa as examples of countries that have this kind of
pension system. See Chungu and Kalula in this volume about the solidarity which can nevertheless
be identified in the pre-funded pension schemes.
10 E. Kasagi
It should also be noted, even though this point will not be examined in this report,
that pay-as-you-go pension systems, as well as those financed by tax, very often
allow income redistribution between people of a same generation who are contrib-
uting to these schemes, in addition to creating solidarity across generations.
2.2 Old Age Pension or Retirement Pension?
Another important criterion in terms of ‘solidarity between generation’ is the

relationship between pension and retirement. In most countries,14 one of the condi-
tions of eligibility for pension benefits is to have reached a certain age; we speak of
‘pensionable age.’ Furthermore, some countries require people to retire from work
before receiving their pension benefit, while other countries do not. This means we
make a distinction in theory between retirement pension (pension for those who are a
certain age and have also retired from work) and old age pension (pension for those
who are simply a certain age). In the past, these two statuses (retirement and old age)
were almost synonymous, as people were generally no longer able to work past a
certain age. In today’s society, the meaning of ‘old age’ has changed and to have a
certain age does not automatically mean that someone is unable to work, as it is more
and more frequent for people to work longer, and the distinction between the two has
become relevant.
We can analyze this point by asking if it is possible to receive pension benefits as
of a certain age, without retiring from work. The answer to this question differs
greatly according to the country. In certain countries, it is possible for a worker to
receive full pension benefits and continue to work with no time limit.15 In this case,
someone can theoretically be both a pensioner and a full time worker, thus
14
Brazil is one of the rare exceptions. See note 17.
15
Italy (reform of 2009), Brazil, Czech Republic, England and Wales, South Africa. In Japan, tax
based universal and basic pension benefits have no restrictions on combining pension benefits and
work. For the old age employee’s pension insurance, however, there is a certain restriction as we
will see later. In the South African pre-funded pension system, it seems somewhat logical that
whether a person who can receive pension benefits continues to work or not stays a private matter.
contributing to the pension system and working at the same time.16 The pension
benefit then covers the risk of ‘old age,’17 regardless of the income of the person who
receives it.
In certain countries, there are restrictions to combining pension benefits and
salaries, even after one reaches retirement age. In Japan, when a pensioner works
and receives a given amount of money, his pension benefit can be reduced.18 As
explained in detail in the Japanese national report, this adjustment of the pension
benefit is controversial. On the one hand, this reduction is justified by the fact that, as
we have discussed above, people who have a stable and suitable income have no
need for pension benefits no matter what their age. On the other hand, this mecha-
nism discourages older people from working, when the goal is to encourage their
employment. Furthermore, the idea of reducing benefits for those who have income
is similar to that of the means test, in the sense that the benefits are provided only
when there is a real need, and a social security (social insurance) system is normally
and theoretically meant to avoid this situation, as benefits are based on contributions.
Finally, some countries19 do not allow people to work while receiving a pension.
In these countries, pension benefits can be considered to be strictly a retirement
pensions,20 which thus cover loss of income related to the old age, and not ‘old age’
itself.
16
It should be noted that in this case (and in the case that the pensioner can work and contribute to
the pension system under certain restriction, as we will see later) there is the possibility of revising
their pension benefits by taking into consideration the contributions made after liquidation must be
considered (that is, whether the pension benefit will be increased once the pensioner stops working).
In Brazil, according a recent decision of the Supreme Court (in 2016), once pension benefits are
liquidated, the worker cannot waive this pension and claim a new, revised pension, which means the
amount cannot be revised (increased) even if the pensioner continues to work and contribute to the
pension system. The pensioner contributes to the pension system without any personal return by
contributing to the pension system as a whole.
17
One exception is the Brazilian system, which allows those who have contributed for a certain
period of time (35 years for men and 30 years for women) to receive pension benefits, irrespective of
the retiree’s age. The pensioner can continue working after the liquidation of their pension benefits.
Pension benefits are therefore neither defined as ‘retirement pension,’ nor exactly as ‘old age
pension’ (at least in today’s context), as one can start receiving pension benefits in one’s 40s. See
Shimamura (2015).
18
See Ohta in the volume for details.
19
Cameroon, Greece.
20
The Japanese pension system once required ‘retirement from work’ as one of the conditions for
eligibility to benefits. See Shimamura (2015).
12 E. Kasagi
2.3 Crisis of the Pension System: How Can Pensioner’s

Rights be Protected? How Can the Interests of Different
Generations be Reconciled?
2.3.1 Context
An aging population affects pension systems very differently, depending on their

financial scheme. While pre-funded pension systems are not affected by demo-
graphics, pay-as-you-go pension systems need stable demographic growth to main-
tain financial balance, as well as keep a pre-established pension fund. As previously
explained, this scheme is based on the promise of a future pension to the active and
contributing generation, and this promise can only be fulfilled by the existence of a
future active and contributing generation. These pay-as-you-go pension systems are
faced with a difficult challenge in this new society of aging and low birth-rates, for a
simple and obvious reason: there will be fewer and fewer people to contribute to the
system, while the number those who receive benefits from it will increase rapidly. In
countries where pension systems are already well developed and long-established,
the problem is even more serious because the burden on the active generation is
much heavier.
What is more, the economic context of growing unemployment and negative
GDP growth, which we already mentioned in the introduction, means diminishing
revenues for welfare programs, including the pension systems. In particular, auster-
ity measures implemented in European countries after the financial crisis often
targeted spending on pensions, which represents a large proportion of government
outlays.21
Furthermore, due to this economic context, political tensions concerning pension
systems are growing. As young adults in many countries find it increasingly difficult
to enter the job market, the heavy burden of supporting the older generation’s fairly
generous pension benefits can cause a feeling of injustice to fester. Not only is their
burden heavier than the previous generation’s, but they cannot necessarily expect
that they will be any better off when they are old.
It is within this demographic, economic and political context that many countries
with pay-as-you-go pension systems have tried to, or are trying to, cut pension
benefits.
Before going into a detailed discussion on this topic, it is worth pointing out that
there are several ways of reducing pension benefits: raising the pension age,
extending the minimum contribution period, limiting the price or wage indexation
of benefits (thus giving rise to the reduction of the real value of benefits), imposing
social contributions or taxes on pension benefits, reducing the value of points when
the amount of pension benefit is calculated by multiplying the number of acquired
21
The following 2013 OECD report indicates this is a general trend of OECD countries. See the
‘editorial’ of the report “Pension at a glance 2013 OECD and G20 indicators”, http://www.oecd.org/
pensions/pensionsataglance.htm.
points by the value of a point, etc. While each country chooses one or several options
according to different aspects of their pension system (financial or demographic
situation, existing conditions of pension benefit, etc.), these different ways of
reducing pension benefit may have different effects and consequences beside simply
cutting pension spending. Thus, for example, the first and second cited options
above effect only the pension benefits of those who have not yet started receiving
them. The second option (extension of the minimum contribution period) will
increase the population having zero pension benefits and most likely depending on
social assistance in their old age. The third option (limiting the automatic indexation
of benefits), the fourth (imposing tax or social contribution on pension benefits) and
the fifth (reducing the value of points) have the specificity of being able to reduce, in
theory, not only future pension benefits, but the pension benefits of those who have
already liquidated their pension benefits.
2.3.2 Reducing Benefits in Pay-As-You-Go Pension Systems
What is most interesting here is whether the cuts to pay-as-you-go pension benefits22
are limited. Since all of the above-mentioned changes used to cut pension benefits
can be carried out by legislation in almost every country examined in this report, the
question is what limitations—legally binding, and therefore effective, or not—to this
legislative power exist: supranational regulations, national constitutions, national
legislations, political obstacles, etc.
In several countries, constitutional rights, or principles written into their consti-
tutions, are considered to limit the lawmaker’s ability to cut pension benefits by legal
reform.23
Firstly, in some countries, judges have deemed the entitlement to a future pension
equivalent to property right, and therefore protected by constitutional24 or
22
As pension cuts are not a crucial question in pre-funded pension systems, we will discuss pay-as-
you-go pension systems only. However, we can quickly think on this question for pre-funded
pension systems. In pre-funded pension systems, one acquires pension benefits by contributing and
accumulating premiums. The individual pension account being separate, it is logical that pension
benefits cannot be easily reduced once they are acquired (In South Africa, as explained in national
report, pension benefits are considered to be intangible by legal provisions).
23
This can be partly rephrased as a question of the judges’ ability to control lawmakers’ discretion
concerning social rights through constitutional and fundamental rights or principles of constitu-
tional value. This question is treated in the following article, which examines the decisions of some
European countries in the context of the financial crisis: Roman (2014).
24
Finland, Germany. In Japan, though there is no judicial decision on this topic, certain legal
scholars support the protection of entitlement to pension benefit as a property.
14 E. Kasagi
supra-national norms.25 In Finland,26 for example, this protection is based on the

idea that the right to a pension is earned while working, which means that pension
benefits are earned income even though they are paid later. They are considered to be
a part of a worker’s compensation,27 thus benefit from constitutional protection as a
property right.28 Protection as a property right is often related to the fact that the right
to a pension is obtained on the basis of contribution. Thus, in Finland, the protection
in question is recognized only for the contributive pension scheme and not for the
national minimum pension given to those who do not have the right to the contrib-
utive pension. In Germany, the importance of contribution in terms of constitutional
protection of pension rights is more controversial.29 However, the decision of the
Federal Constitutional Court is that a protection of ‘legitimate expectation’30 is
necessary and would ensure that individuals receive a pension that is fair in relation
to their contribution.
We can observe that in those countries which adopted (at least partly) a pay-as-
you-go system, contribution and benefits are considered to be strongly related,
despite, as mentioned above, this relation remaining more or less abstract in this
financial scheme. Concerning the protection of pension rights, the distinction
between different stages of pension (during the contribution period, after pension-
able age, and after liquidation, etc.) could also affect the possibility and degree of
protection,31 although this point was not often discussed in the national reports. It
would be interesting to look at this matter in more depth, from a comparative
perspective, in relation to the theoretical basis of the protection of pensions rights
as a property right.
Secondly, some countries have specific social rights written into their constitu-
tion, whereby any legislation covering pension cuts can be controlled by judges, thus
providing another limitation other than property rights protection. We would like to
mention the case of Belgium in particular. The art. 23 of their constitution describes a
right to social security benefits.32 While it is accepted that the benefits acquired
through this right change according to time, social change and the financial means of
25
See Civ.2è 17 avril 2008, n 07-12144 which refers to the Art 1 of the Protocol to the Convention
for the Protection of Human Rights and Fundamental Freedoms (the decision considers that the
decrease of a point value in complementary pension does not represent an unjustified infringement
of this article).
26
According Finish national report.
27
PeVL 9/1999 vp, s. 2/I, PeVL 60/2002 vp, s. 2/I.
28
Section 15 of the Finnish Constitution.
29
See Janda in this volume for details. As the chapter shows, the equal treatment principle can also
affect the legitimacy of pension reforms.
30
Though we cannot explore this in detail, the protection of the ‘expectation’ of pension rights
might and should be distinguished from the protection of pension rights. The principle of legal
security can be discussed in relation to this point, as Camaji in this volume examines in detail.
31
This question is discussed in Camaji and Ota in this volume.
32
Art. 23 of the Belgian Constitution. The article guarantees, first of all, a right to have a standard of
life respecting human dignity (para.1), which should be specified by economic, social and cultural
the government, this article is interpreted as a ‘standstill’ obligation for lawmakers.

A ‘standstill’ obligation means an obligation to keep social benefits at their status
quo, especially those which existed at the time this article was implemented (1994).
Unlike the previously discussed protection as a property right, the protection pro-
vided by the standstill obligation is not related to the contributive nature of the social
benefits in question. Standstill obligation does not imply, however, an obligation to
preserve social benefits. Small reductions, as well as modifications of practical
aspects of benefits, are possible. Also, the reduction of one benefit can be compen-
sated by other measures.
In Italy, the constitution has two articles concerning workers’ social rights, which
also describes the right to pension benefits.33 According to a recent Constitutional
Court ruling,34 the discretionary power of the lawmaker to modify pension income
of individuals must meet the constitutional limit of the rationality and proportion-
ality principles, derived from these two articles.35 In a court decision in 2015, a
reform which stopped automatic adjustment for those who receive a pension exceed-
ing a certain amount36 was considered to be unconstitutional.37
In other countries, the various descriptions of social rights or, more broadly,
welfare state principles in their constitution have been referred to in order to limit the
discretionary power of lawmakers. In Greece, the reaction to financial crisis led to an
attempt to cut pension benefits in 2012. These cuts were judged to be against primary
constitutional rights and principles, such as: the ‘obligation of the State to respect
and protect the value of human beings’;38 ‘contribution by citizens without distinc-
tion to public charges in proportion to their means’;39 ‘rights of human beings. . . .
and the principle of welfare state rule of law. . . .’40 and ‘the duty of citizens to social
and national solidarity.’41 particularly because there was no sufficient justification to
go through with them.
What these countries have in common in terms of constitutional protection for
pension benefits is that they do not guarantee the inviolability of pension benefits
rights through laws and administrative rules (para.2), including a right to work, a right to social
security, a right to protection of health, a right to decent accommodation, etc. (para.3).
33
Art. 36(1), as well as Art. 38(2).
34
Judgement no. 70 of 2015 on April 30, 2015.
35
Art. 36, para. 1 (Workers have the right to a remuneration commensurate to the quantity and
quality of their work and in any case such as to ensure them and their families a free and dignified
existence) and Art. 38 para. 2 (Workers have the right to be assured adequate means for their needs
and necessities in the case of accidents, illness, disability, old age and involuntary unemployment)
of the Italian Constitution.
36
The 2011 reform stopped the automatic adjustment (indexation) of pensions over 14,000 euros
per month.
37
About this decision, see Bergonzini (2016), p. 177.
38
Art. 2, paragraph 1 of the Greek Constitution.
39
Art. 4, para. 5 of the Greek Constitution.
40
41
16 E. Kasagi
even when they are liquidated, as we have already briefly discussed with the Belgian
‘standstill’ obligation. On the contrary, the general tendency of the judges in almost
all the countries that we examined is to allow the lawmakers a great deal of leeway
when it comes to legislation on social rights, including pension rights. In these
countries (Greece, Belgium,42 Italy,43 Germany, France), the decision to cut pension
benefits can be justified by the economy, the national budget, the financial sustain-
ability of the pension system, extraordinary circumstances, etc., as long as the
pension cut is proportional to the chosen justification. It is worth mentioning that
in France, equity across generations has been brought up as one of the justifications
for pension cuts.44
In addition to these substantial justifications, the judges often require procedural
and supplementary efforts to justify pension cuts. For example, they can ask for an
adequate explanation of justification from the government.45 German courts have
also instructed that pension cuts be implemented gradually, over a long period.46
To summarize, two common ideas emerge about the role of judges concerning
pension cuts. Firstly, lawmakers have a wide scope for decisions concerning the
legal provisions which guarantee social rights. Secondly, the financial stability or
sustainability of the pension system is often considered sufficient justification for
pension cuts.
2.3.3 The Legislative and Political Limitations of Pension Cuts
In the countries where the constitutional protection of the right to pension benefits
has not been recognized (or not yet discussed) by judicial ruling, there are attempts at
limiting pension cuts by means of legislative or political promises.47 Japanese law is
42
According to the Belgian Constitutional Council and the Conseil d’État, standstill obligation is
violated only when the reduction of benefits is significant. Conseil d’État 23 septembre 2011,
nr. 215.309,20, Conseil d’État 6 décembre 2011, nr. 216. 702, nr. 33. See Alofs and Van
Limberghen in this volume for the detail.
43
Judgment No. 223 of 2012. According to this decision, the government can adopt exceptional
measures in a serious financial crisis to reconcile (1) the need to stabilize the budgetary situation and
(2) the need to guarantee services and rights for individuals according to the constitutionally
entrenched principles of equality.
44
CE, 26 mars 2010, n 323201. See Chap. 5 of this volume. In Japan, while there is no judicial
decision on this point, the government raises the argument of intergenerational justice to justify
pension cuts. See page 37 of the Japanese national report.
45
See the Greek and Italian cases cited above.
46
According to the decisions of the German Federal Constitutional Court, this adjustment period
can protect the legitimate expectation that we have mentioned above.
47
In England, what is called the ‘triple lock’ principle was a political promise of the coalition
government formed in 2010, which ensured that state pensions would increase by the highest of the
increase in earnings, the increase in prices (as measured by the Consumer Price Index) and 2.5%.
This principle recently provoked a controversy. See Chap. 10 of this volume and Crawford
et al. (2016).
an interesting case. It not only introduces the automatic adjustment of the indexation
rate of pensions according to the demographic situation (i.e. substantial reduction of
the amount of the pension), but it also sets a limit for this pension cut by fixing the
minimum replacement rate (50%48) for the amount of a model pension49 and by
requiring the government to take measures to ensure this limit.
2.3.4 Different Perspectives on the Question of Pension Cuts
The question of pension cuts and their limits can be discussed from different
perspectives. The judicial decisions that we have examined seem, overall, to have
treated this question from a perspective of balancing two important requirements—
the protection of individual rights, as well as financial and budgetary sustainability of
pension systems. These requirements, individual and collective respectively, are
closely tied to each other, in the sense that the financial balance, or, in other
words, the sustainability,50 of the pension system is the basis of an individual’s
pension right.51 This connection between collective and individual interests of
different generations is a unique aspect of solidarity across generations as it is
organized by pay-as-you-go pension systems. From this point of view, even if the
individual right to pension benefits is protected as a property right, this protection
cannot be of the same nature as the traditional individual property right, since the
collective interest of sustainability can never be neglected.
This dichotomy is particularly interesting in the context of Italy, where an article
which calls for a balanced budget has recently been added to their constitution (Art.
81). The recent court decision (No.70 of 2015), discussed above, pointed out that
(even though this decision was made before Art. 81 was introduced) lawmakers
could adjust pensions in consideration of the available economic resources. The
Court emphasized the fact that the economic reasons which could be given as
justification had not be adequately clarified.52 Spain also introduced a new article
(Art. 135) in its Constitution, in 2011, pronouncing a principle of budgetary stability,
the application of which includes the social security administration. This Spanish
Constitutional reform was an important contextual factor of the pension system
reform which opened the possibility of automatic adjustment of pension level
according to demographic development.53
Though it is not clearly discussed in the different decisions that we examined, this
also raises the question of the weight of different legislative decisions at different
moments in time. Pension cuts decided by lawmakers today can, after all, be
48
This rate was fixed at 62% in 2014.
49
The total pension of a male worker who has worked for 40 years for the average male worker’s
salary.
50
See Janda in this volume about for details on the concept of ‘sustainability’.
51
See particularly Camaji and Ohta in this volume.
52
See Bergonzini (2016).
53
For more details, see Maldonado Molina in this volume.
18 E. Kasagi
considered to be a withdrawal from promises made by lawmakers in the past54

(which, in a way, can be said of all the changes in legal institutions). The trend of
judicial decisions we discussed in this section means, from this point of view, that
the judges primarily respect the considerations and decisions of today’s lawmakers,
who consider the current financial and demographic situation that require changes to
what had been decided by lawmakers in the past. As we have seen, judges often
require that the justification for change be thoroughly explained by lawmakers,
without examining themselves the changes of the financial and demographic situa-
tions, as well as the sustainability of the pension system.
3 Family Solidarity and Public Solidarity55
In these third and fourth sections, we will tackle solidarity across generations within
the family, as well as the relationship between this family solidarity and collective
solidarity, which is organized and made obligatory by the state through various
institutions (what we have called ‘public solidarity’ in this report).
Almost all the national reports talk of the importance of inter-generational
solidarity, whether in the form of financial and material support or in the form of
care within the family, between three different generations—grandparents, adult
children and grandchildren. Solidarity across generations within the family can be
divided into several types of solidarity, and in the following two sections (3, 4) we
will focus on two of these. Firstly, solidarity in the form of financial support towards
a person in need, made mandatory often by provisions in civil and family law on
support duties between family members. Secondly, solidarity beyond legal duties,
notably in the form of ‘care’ for a person in need of LTC. For both of these types of
solidarity within the family, we will analyze the relationship between private
(family) and public (collective) solidarity.
These two types of family solidarity must be clearly distinguished, especially
from a legal point of view, because financial support between family members is, as
we have mentioned, for a long time and in almost all countries, partly considered to
be legal obligation in family law. The ‘care’ within the family, on the other hand, has
been until very recently largely invisible, and then often ignored or very marginally
taken in consideration by family law. It should also be noted that from a legal point
of view, ‘care’ might not be considered suitable to integrate in the framework of
legal obligation, which implies compulsory execution under certain circumstances.56
54
Ota (2000), p. 120.
55
For both Sects. 3 and 4, see Sayn (2006).
56
Yamawaki (1997) p. 78.
3.1 Support Duties Between Adult Members of a Family

and Welfare Benefits
3.1.1 Different Types of Support Obligations
Among the different legal support duties between family members, the duty of
parents to support their minor children holds a privileged position in all countries.
The protection of children is a value shared internationally, as is demonstrated by the
UN convention on the Rights of the Child.57 The maintenance obligations between
spouses also exist in most countries. However, support and maintenance duties
between other family members are prescribed (or not prescribed) by family law
provisions in ways which vary from one country to another. In this section, we will
concentrate on support duties of adult children towards their aged parents in need.58
In many countries, there are laws describing the support duties between family
adult members, including those of adult children towards their aged parents.59
However, very often these laws have conditions, such as, first of all, in almost
every country where adult family members have an obligation to support other adult
family members, the person claiming support (ex. aged parent) must be unable to
support himself/herself (need of support). The person from whom the support is
claimed (the adult child) must also be able to support the claimant (capacity of
support). The nature, as well as the level, of these obligations between adult family
members are often clearly differentiated from the obligations of parents towards their
minor children, as well as obligations between spouses.60
In addition to the conditions of need and capacity for support, many countries also
require a condition of minimum reciprocity of support between family members, to
recognize support duties between adult family members. This third condition is
usually discussed in the context of support duties of adult children towards aged
parents. This means, more specifically, that adult children can deny support when
their parents have seriously neglected their own duties towards their minor
57
See Art. 7 of the UN Convention on the Rights of the Child.
58
Even though other relatives can also play a very important role in supporting elderly people who
are in need.
59
Germany, Cameroon, Belgium, Spain, Czech Republic, Singapore, Hungary, Brazil, Japan,
South Africa, Italy. However, the effectiveness of these obligations should be carefully examined,
as adults are often reluctant to ask for the support of their family when this support is not
volunteered. See the Belgium report on this point.
60
We can see a typical example in Japan where doctrine and case law clearly distinguish two types
of support duties by giving them different names and definitions. Concerning obligations of parents
toward minor children, as well as obligations between married persons, the provider must assure the
claimant the same standards of living as their own (so called obligation to maintain) without any
other condition than family relation. For other types of relations, support duty is less demanding, the
provider should help only when the claimant is in need and the provider can afford to do so
(so called obligation to help).
20 E. Kasagi
children.61 The reciprocity of support is especially emphasized in this child-parent

relationship,62 probably, and at least partly, because of the essential nature of support
obligations of parents towards minor children. In Belgian law, the loss of parental
authority is considered to be the only factor of ‘unworthiness’ of support;63 thus
distinguishing the child-parent relationship from other types of family relationships.
Among the European countries included in this contribution, Hungarian law,
unlike the law in other countries, features in the constitution (Basic Law) an article
which prescribes the support duties of adult children towards parents (Art. XVI).
Hungarian law is also unique in that it requires absence of fault of the support
claimant in general for a person of legal age to claim support from relatives,64
therefore requiring a sort of ‘worthiness’ to claim family support.
On the other hand, there are some countries where support duties towards adult
family members does not exist.65 In these countries, adult children are never obliged
or enforced to support their parents even when they are in need. However, it should
be said that in these countries, as we can see in Greece and in Finland in particular,
even though the law does not specifically state this obligation of support, financial
support from children towards their aged parent is in fact widespread.
With today’s trend of aging populations, longevity, and the rapid increase of the
cost of nursing homes, support duties towards elderly family members will surely
become an important and controversial issue.66
3.1.2 Reinforcing Support Duties in the Context of an Aging Society
An interesting trend has emerged in some Asian countries, which tend to have
relatively little social spending. They reinforce the support duties of adult children
towards aged parents by promoting traditional family values.
61
In Hungarian law, the claimant of support should not be ‘unworthy’ of maintenance. When it
comes to adult children’s obligations toward parents, if the parent fulfilled his or her obligation to
maintain and care for the child and to provide for his or her upbringing, the child cannot allege
unworthiness except in the case where there is proof of extreme misconduct of the parent against the
child. Section 4: 194 (2) and (3) of the Hungarian Civil Code. In French family law, according art.
207 of the Civil Code, the judge can ‘supprimer ou diminuer (eliminate or reduce)’ support
obligations, in cases where the claimant has not fulfilled his own obligations (a typical example
of this is a parent who had not cared for his child). Bénabent (2016), p. 498.
62
In German doctrine, support obligations between parents and children are considered to be based
on a relationship of reciprocity across different generations. This reciprocity can therefore limit, as
well as justify the support obligations. Hilbig-Lugani (2013), p. 763.
63
Cour de Cassation, 6 mai 1987, 5796.
64
Section 4:194 (1) of the Hungarian Civil Code. Belgian law excludes support obligations between
adult family members only when the condition of the person in need has been caused deliberately.
65
Finland, England, Greece.
66
See the following report published in France on the initiative of the French Sénat: Étude de
législation comparée n 189 - octobre 2008 – L’obligation alimentaire envers les ascendants.
In 1995, after much debate and controversy, a law was passed in Singapore called
the ‘Maintenance of Parents Act,’67 which prescribes the maintenance obligations of
adult children towards their vulnerable and elderly parents. According to this law,
any Singaporean resident of 60 years old or more, and who is unable to support
himself/herself adequately, is entitled to claim support from their children, either as a
lump-sum payment or as a monthly allowance. This entitlement to support, however,
is denied to parents who neglected or abused their children, which condition is
justified by the ‘principle of reciprocity of care.’68 This law must be examined
separately from the support obligations that we have observed previously in other
countries, because it was introduced specifically as a response to the problem of an
aging society. Moreover, the context of the law’s creation is further complicated by
the fact that Singapore has a meager collective or public mechanism for supporting
people in need, including the elderly,69 and civil law has no regulation about support
duties between adult family members. This law is sometimes explained as reflecting
the Confucian idea of reciprocity in child rearing and caring for aged parents, which
is deeply rooted in Singaporean society. However, these ‘Asian family values’,
including filial piety and respect for elders, may be weakened in contemporary
Singaporean society as they come into conflict with industrialization and Western-
ization, at least from the lawmaker’s point of view. Actually, this transformation of
social norms—or, at any rate, a fear of this transformation—was a significant factor
of this legislation.70 Singapore has also recently introduced a ‘proximity housing
grant’ to encourage their citizens to live close to their family. This grant is attributed
to those who buy a resale flat to live with or close to their parents or children.71
More recently in China, the General Provisions of the Civil Law (implemented
October 1, 2017) stipulates for the first time the obligation of adult children to
support their aged parents.72 This reform is part of a general tendency in China to
reinforce the values of family and family solidarity, also in the context of an aging
society, which is also exemplified by another law requiring children to care for their
aged parents (‘Law about protection of the interest and the rights of aged persons’).
We will discuss this trend in more detail in Sect. 4.
67
See the following website: https://sso.agc.gov.sg/Act/MPA1995.
68
See the Singaporean national report.
69
Except the Public Assistance Scheme.
70
Lee (1995), p. 671.
71
This grant is a part of a comprehensive public housing program, common in Singapore. See for
example Phang and Helble (2016), pp. 174–209.
72
Here again, the abandonment of the minor child by the parents by blood breaks the legal
relationship of family and therefore exempts the child from the obligation to support the parents.
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The same reflection is forced upon us when we observe that the
Λόγος or Divine Word conceived as a cosmic power plays no part in
the earliest Hellenic theology of which we have any cognisance (we
are not here concerned with the later history of the concept): nor can
we find in the earliest Greek period the name of God exalted into the
position of a divine creative force; although, as I have shown
elsewhere, the earliest Hellene, as the later, was fully sensitive to the
magico-divine efficacy of names.179.1
We may also gather something for our present purpose from a
comparison between the cosmogony or cosmic myths of East and
West. Of these it is only the Babylonian and Hebraic that can claim a
great antiquity of record. What is reported of Phoenician belief
concerning these matters is of late authority, Eusebios quoting from
Sanchuniathon or Philo Byblios, and this is too much permeated with
later elements to be useful here. As regards the Hellenic theory of
the origin of the world and of man, putting aside a few scattered hints
in the Homeric poems, we have Hesiod for our first and insufficient
witness. If we can detect Babylonian influence in the Hesiodic
system, we must not hastily conclude that this was already rife in the
second millennium: on the other hand, if Hesiod seems to have
escaped it, it is far less likely that it was strong upon the proto-
Hellenes.
For early Babylonian cosmogony our main evidence is the epic
poem of creation, preserved on tablets found in the library of King
Assurbanipal, which elucidates, and in the main corroborates, the
fragments of the story given by Berosos in the third century B.C. Our
earliest record, then, is actually of the seventh century, but
Assyriologists have given reasons for the view that the epic copied
for Assurbanipal descends from a period as early as B.C. 2000; for
part of it accords with an old Babylonian hymn that has been
discovered.179.2 The document is therefore ancient enough for the
purposes of our comparison. It is well known through various
publications, and can be read conveniently in the detailed exposition
of King in his handbook on Babylonian religion.180.1
When we consider carefully the more significant features in this
cosmogony, we are struck with its almost total unlikeness to anything
that we can discover or surmise in early Hellenic thought. It is true
that the Babylonian theory starts with the dogma that the earliest
cosmic fact was the element of water. Apsu and Tiâmat are the first
powers in an unordered universe, and these seem to be the personal
forms of the upper and lower waters, the fresh and the salt. We find
the parallel thought in Homer, who speaks of Okeanos as “the
source of all things,”180.2 including even the gods. But the value of
such a parallelism is of the slightest, for the vague theory of a watery
origin of created things appears widely diffused in the myths of
remote peoples, for instance, North-American Indians, Aztecs, the
Vedic Aryans, and there is a glimmer of it in the old Norse.180.3 No
conclusion, then, can be drawn from so slight a coincidence. If we
know anything of the cosmogony of the pre-Homeric society we
know it from Hesiod, for Homer himself shows no interest and makes
no revelation on the subject. With certain reservations and after
careful criticism we may be able to regard some parts of the
Hesiodic statement as reflecting the thought of an age anterior to
Homer’s. Therefore it is of some present value to observe how little
of characteristically Babylonian speculation appears in the Hesiodic
Theogony or Works and Days. Both systems agree with each other,
and—it may be said—with all theogonies and religious cosmogonies,
in regarding the primeval creative forces as personal powers who
work either by the method of sexual generation or through
mechanical processes of creation: the first of these methods, which
though mythical in form has more affinity with organic science, is
predominant over the other in the Hesiodic narrative. But the
personal powers are different in the two systems. In the Babylonian
the greatest of the primeval dynasts is Tiâmat, the sea, the mother of
the gods and also of all monsters: in the Hesiodic it is Gaia, the
Earth-mother, who does not appear at all in the Eastern cosmogony,
but who claimed this position in the Hellenic through her deep-
seated influence in the ancient religion. We note also that the
Babylonian Sea is decidedly evil, the aboriginal foe of the gods of
light, a conception alien to ordinary Hellenic thought. Again, the
Babylonian creation of an ordered cosmos is a result of the great
struggle between Marduk and Tiâmat, the power of light and the
sovereign of chaos: it is preceded by hate and terror. In the Hellenic
account the generation of the heavens, the mountains, the sea, and
the early dynasty of Titan-powers is peaceful and is stimulated by the
power of love, Eros, who has his obvious double in the Kāma or
principle of desire in a cosmogonic hymn of the Rig-Veda, but is not
mentioned by the Babylonian poet. (Nor does it concern us for the
moment that this Eros is in respect of mere literary tradition post-
Homeric: we may surmise at least that he was a pre-Homeric power
in Boeotia.) Again, when we come to the theomachy in Hesiod, as an
event it has no cosmogonic value at all: it has the air merely of a
dynastic struggle between elder and younger divinities, and the myth
may really have arisen in part from the religious history of a shifting
of cults corresponding to a shifting of population: nor are the Titans
more representative of evil or of a lower order of things than the
Olympian deities; and cosmic creation, so far as Hesiod treats of it at
all, seems over before the struggle begins. On the other hand, after
Marduk has destroyed Tiâmat he constructs his cosmos out of her
limbs, and then proceeds to assign their various stations to the great
gods, his compeers. Thus the struggle of the god with the principle of
disorder has a cosmic significance which is not expressed in the
Titanomachy. The curious conception also that the universe was
compacted out of the dismembered limbs of a divine personage,
which reminds us of the Vedic story of the giant Purusa182.1 and of
the Norse legend of Ymir, is not clearly discoverable in Hellenic
mythology: for the Hesiodic myth of the forms and growths that
spring from the blood of the mutilated Ouranos is no real parallel.
And there is another trait in the Babylonian theory of a world-conflict
that distinguishes it from the Hellenic myths of a Titanomachy or
Gigantomachy; it was sometimes regarded not as a single event,
finished with once for all, but as a struggle liable to be repeated at
certain periods.182.2 On the other hand, Hesiod’s narrative of the
oppression of Gaia’s children by Ouranos and the outrage inflicted
on him by Kronos has its parallels in Maori and savage legend,182.3
but none in Mesopotamian, so far as our knowledge goes at present.
A different Babylonian mythological text from the library of
Assurbanipal speaks of another battle waged by Marduk against
Labbu, a male monster imagined mainly as a huge snake; and
Marduk is described as descending to the conflict in clouds and
lightning:183.1 the legend has no obvious significance for cosmogony,
for it places the event after the creation of the world and of men and
cities. But it has this interest for us, that it may be the prototype for
the legend of Zeus’ struggle with Typhoeus, which is known to
Homer, and which he places in the country of the Arimoi, regarded
by many of the ancient interpreters, including Pindar, as Cilicia.183.2
Now, the story of this conflict in Hesiod’s theogony has no
connections with the Titanomachy or the Gigantomachy, nor is it
there linked by any device to any known Hellenic myth; nor is it
derived, like the legend of Apollo and Python, from genuine Hellenic
cult-history. It has an alien air and character. Typhoeus is on the
whole regarded as a monstrous dragon, but one of his voices is that
of a lion, another that of a bull. The resemblance of this narrative to
the Babylonian one just mentioned is striking, and becomes all the
more salient when we compare certain Babylonian cylinders which
picture Marduk in combat with a monster, sometimes of serpent
form, sometimes with the body of a lion or a bull.183.3 The Typhoeus-
legend belongs also essentially to the Asia-Minor shores, and if
Cilicia was really the country whence it came to the knowledge of the
Homeric Greeks, it is a significant fact that it was just this corner of
the Asia-Minor coast that felt the arms of the earliest Assyrian
conquerors in the fourteenth century B.C.; and it is just such myths
that travel fast and far.
If the hypothesis of Assyrian origin is reasonable here, many will
regard it as still more reasonable in regard to the Deukalion flood-
story. Certain details in it remind us, no doubt, of the Babylonian
flood-myth; and as this latter was far diffused through Asia Minor, it
was quite easy for it to wander across the Aegean and touch Hellas.
But if it did, we have no indication that it reached the Hellenes in the
early period with which we are here concerned, as Hesiod is our
earliest authority for it.
The last theme of high interest in the cosmogonic theory of ancient
Babylonia is the creation of man. According to Berosos, this
momentous act was attributed to Bel, who, after the victory over
Chaos, commanded one of the gods to cut off his head and to make
men and animals out of earth mixed with his own blood, and this
story is partly corroborated by an old cuneiform text that is derived
from the beginning of the second millennium.184.1 This interesting
theory was not universally accepted, for another and independent
text ascribes the creation of man to Marduk and a goddess called
Aruru, simply as a mechanical act of power.184.2 The idea implicit in
the former account, of the blood-relationship of man to god, is of the
greater potentiality for religious metaphysic, and a similar notion is
found, developed into a high spiritual doctrine, in the later Orphic
Zagreus-mystery. But there is no trace of it in genuine Hellenic
thought or literature. We have no provedly early Greek version of the
origin of man: only, in the Works and Days, we are told that the
Immortals or Zeus made the men of the five ages, the third
generation, out of ash-trees: it may be that the story of Prometheus
forming them out of clay was known to Hesiod, as Lactantius
Placidus attests;185.1 in any case we may judge it to be of great
antiquity on account of its wide vogue in the later period, and its
occurrence in other primitive folklore. But nothing like it has as yet
been found in the ἱερὸς λόγος of Mesopotamia.
Generally we may say that the Hesiodic cosmogony bears no
significant resemblance to the Babylonian, and this negative fact
makes against the theory of Mesopotamian influence upon pre-
Homeric Hellas.
As a divine cosmogony implies some organic theory of the
Universe, so the polytheisms that attempted such speculations
would be confronted also with the problem of finding some principle
of order by which they might regulate the relations of the various
divinities, one to the other. We find such attempts in Mesopotamian
religion. Certain deities are affiliated to others, Marduk to Ea, Nebo
to Marduk, though such divine relationships are less clear and less
insisted on than in Hellenic theology; and the grouping of divinities
shifts according to the political vicissitudes of the peoples and cities.
We may discern a tendency at times to use the triad as a unifying
principle, giving us such trinities as Anu, Bel, Ea, or Sin, Shamash,
Adad;185.2 we have glimpses of a trinitarian cult in early
Carthage,185.3 and slight indications of it in the Minoan-Mycenaean
pillar-ritual.185.4 But I cannot find anything to suggest that among the
cultured or uncultured Semites it was ever in the ancient period a
powerful and constructive idea, able to beget a living dogma that
might capture the popular mind and spread and germinate in
adjacent lands.186.1 We have perhaps as much right to regard the
number seven as a grouping principle of Babylonian polytheism, in
the later period at least, when we find a group of seven high deities
corresponding to the seven planets.186.2 We might discover a Hittite
trinity of Father, Mother, and Son if we concentrated our attention on
the Boghaz-Keui reliefs; but the other Hittite evidence, both literary
and monumental, gives no hint of this as a working idea in the
religion. In fact, in most polytheisms of the Mediterranean type it is
easy to discover trinities and easy to deceive oneself about them.
The human family reflected into the heavens naturally suggests
the divine trio of Father, Mother, Child. And this may be found on the
Asia-Minor shore and in Hellas. It would be more important if we
could discover the worship of this triad in an indissoluble union from
which the mystic idea of a triune godhead might arise. This is not
discernible clearly in the older period on either side of the Aegean.
The cult-complex of Zeus, Semele, and Dionysos does not belong to
ancient Hellas and is rare at any period; that of Hades Demeter Kore
is occasionally found in cults of doubtful antiquity, but usually the
mother and daughter were worshipped without the male deity. The
Homeric triad so often invoked in adjurations of Zeus, Athena, and
Apollo, which misled Mr. Gladstone, is due probably to the
exigencies of hexameter verse, and is not guaranteed by genuine
cult. No divine triad in Hellas can be proved to have descended from
the earliest period of Greek religion, except probably that of the
Charites at Orchomenos.187.1 We have later evidence of a trinity of
Zeus, Poseidon, and Hades, expressing the triad that Nature
presents to us of sky, sea, and earth. But probably one of these
figures is an emanation of Zeus himself; the sky-god having become
“chthonian” in a very early period.187.2 We cannot say, then, that the
earliest period of Hellenic religion shows a trinitarian tendency; and if
it were so, we could not impute it to early Mesopotamian influence,
for the idea of a trinity does not appear in the Eastern religion with
such force and strength as to be likely to travel far.
As for the artificial group of the twelve Olympians, we should
certainly have been tempted to connect this with Babylonian lore, the
number twelve being of importance in astronomical numeration; only
that the divine group of twelve does not happen to occur in
Babylonian religious records at all. Nor does the complex cult of the
Δώδεκα θεοί appear to belong to the earliest period of Greek
religion.187.3 And so far I have been able to discern nothing that
justifies the suggestion187.4 that the principle of unification or divine
grouping in early Mediterranean polytheism came from Babylon.
A severely organised polytheism with one chief divinity, to whom
all the others were in definite degrees subordinated, might evolve a
monotheism. And in Babylonian literature we can mark certain
tendencies making in this direction. One tablet contains an
inscription proclaiming all the high gods to be forms of Marduk,
Nergal the Marduk of war, Nebo the Marduk of land.188.1 That all the
deities were mere forms or emanations of the Eternal might have
been an esoteric doctrine of certain gifted minds, though it was
difficult thus to explain away and to de-individualise the powerful
self-asserting personality of Ishtar, for an attractive goddess-cult is
always a strong obstacle to pure monotheism. A particular king might
wish at times to exalt the cult of a particular god into a monotheistic
ideal; the attempt was seriously made in Egypt and failed. It may
have been seriously intended by King Rammannirari III. (B.C. 811-
782), who introduced the cult of Nebo, always one of the most
spiritual figures of the Pantheon, into Kelach; hence comes a long
inscription on two statues now in the British Museum, set up by a
governor in honour of the king, which is valuable for its ethical
import, and still more interesting for its monotheistic exhortation at
the close:188.2 “Oh man, yet to be born, believe in Nebo, and trust in
no other gods but him.” Here is the seed that might have been
developed by a powerful prophet into pure monotheism. But the
ecstatic Babylonian votary is always falling into contradiction, for in
the earlier part of this hymn he has called Nebo, “The beloved of Bel,
the Lord of Lords.” What, then, must the congregation think of Bel?
In Greek religion the germs of monotheistic thought were still
weaker and still less likely to fructify. The earliest Hellenic tribes had
already certain deities in common, and the leading stocks at least
must have regarded Zeus as the supreme god. They must have also
adopted many indigenous deities that they found powerful in their
new homes, whose cult could not be uprooted even if they wished to
do so. We must therefore imagine the pre-Homeric societies as
maintaining a complex polytheism, with some principle of divine
hierarchy struggling to assert itself. Homer, if it is ever true to speak
of him as preaching, seems certainly the preacher of the supremacy
of Zeus. How far this idea was accepted in the various localities of
cult we have not sufficient material for deciding: much would depend
on the degree to which the individuals were penetrated by the higher
literature, which from Homer onwards proclaimed the same religious
tenet.189.1 We can at the same time be sure that in many localities
the countryfolk would be more under the spell of some ancient deity
of the place than of the sky-father of the Aryan Hellenes. And though
his cult was high placed by the progressive races, and his
personality powerfully pervading in the realm of nature and human
society, so that the higher thinkers entered on a track of speculation
that leads to monotheism, the masses did not and could not follow
them, having, in fact, the contrary bias. The popular polytheism
showed itself most tenacious of divine personalities; and owing partly
to the sacred power of divine names, the various titles of a single
divinity tend occasionally to engender distinct divine entities. I have
also already indicated that art contributed to the same effect through
multiplying idols. So far, then, from displaying monotheistic
potentialities, Greek polytheism, from the pre-Homeric period we
may suspect, and certainly after the Homeric age, tended to become
more polytheistic.
CHAPTER XI.
The Religious Temperament of the
Eastern and Western Peoples.
A more interesting and fruitful ground of comparison is that which

looks at the inward sentiment or psychic emotion of the different
religions, at the personal emotional relation of the individual towards
the godhead. As I observed before, a clear judgment on this
question is only possible when the religious memorials of a people
are numerous, varied, and personal, so that some of them at least
may be regarded as the expression of the individual spirit. Even if
the priest or the ritual dictates the expression, the pious and frequent
votary may come to feel genuinely what is dictated to him. Hence we
can gather direct testimony concerning the ancient Babylonian as we
can of the ancient Hebrew religious temper and emotion; for though
most of the Mesopotamian documents are concerned with the royal
ceremonial, which does not usually reveal genuine personal feeling,
yet in this case the royal inscriptions, whether religious narrative or
liturgies or prayers, are unusually convincing as revelations of self.
And besides these, we have many private hymns of penance and
formulae of exorcism.
On the other hand, the ancient Western world and even historic
Greece is singularly barren of this kind of religious testimony. We
know much about the State religion, but we have very few ritual
formulae or public or private prayers. Our evidence is mainly the
religious utterances of the higher poetry and literature and a few lyric
hymns composed not for the solitary worshipper, but for common
and tribal ritual-service. But we have also the mythology and the art
and the general manifestations of the Hellenic spirit in other
directions that enable us to conclude something concerning the
religious psychology of the average man in the historic periods, and
if we find this markedly different from that of the oriental, we shall
find it hard to believe that the Babylonian spirit could have worked
with any strong influence on the proto-Hellene.
A sympathetic study of the Babylonian-Assyrian documents
impresses us with certain salient traits of the Mesopotamian religious
spirit, some of which are common to other members of the great
Semitic race. In a certain sense the Babylonian might be described
as “ein Gott-betrunkener Mensch”: as one possessed with the
deepest consciousness of the ineffable greatness of God, of his own
utter dependence, and at the same time of the close personal
association between himself and the divinity. The ecstatic adoration
we have marked in the liturgies is the result of a purely mental
contemplation, will-power, and conviction, not of mystic initiation—for
Babylonia had no mysteries—nor of orgiastic rites that could afford a
physico-psychic stimulus. The individual seems to have regarded
himself at times as the son, more often as the bond-slave, of his own
tutelary divinity, who is angry when he sins and becomes favourable
and a mediator in his behalf with other gods when he repents. In
private letters of the time of Hammurabi we find the greeting, “May
thy protecting god keep thy head well.” A common formula occurs in
the incantations: “I, whose god is so-and-so, whose goddess is so-
and-so.”192.1 In the penance-liturgy the priest speaks thus of the
suppliant sinner, “Thy slave who bears the weight of thy wrath is
covered with dust,… commend him to the god who created him.”192.2
With this we may compare certain phrases in a well-known
penitential psalm, “Oh mighty Lady of the world, Queen of
mankind.… His god and goddess in sorrow with him, cry out unto
thee.… As a dove that moans I abound in sighings.”192.3 Abject
remorse, tears and sighing, casting-down of the countenance, are
part of the ritual that turns away the anger of the deity: hence fear of
God and humility are recognised religious virtues. Merodach-Baladin
of Babylon, in Sargon’s inscription, is described as a fool “who did
not fear the name of the Lord of Lords,”192.4 and the idea is shaped
in a general ethical maxim in another inscription, “He who does not
fear his god is cut down like a reed.”192.5 “I love the fear of God,”
says Nebukadnezar in the record of his life.192.6
Such emotion and mental attitude is consonant with the Hebraic
and with much of the modern religious temper; but entirely out of
harmony with all that we know of the Hellenic. The religious habit of
the Hellene strikes us by comparison as sober, well-tempered, often
genial, never ecstatically abject, but even—we may say—self-
respecting. Tears for sin, lamentations and sighs, the countenance
bowed to the ground, the body cleaving to the pavement, these are
not part of his ritual; the wrath of God was felt as a communal more
often than as an individual misfortune, and in any case was averted,
not by emotional outpourings of the individual heart, but by ritual
acts, solemn choruses, soothing sacrifice and songs, or by special
piacular lustrations that wiped off the taint of sin. Tears are never
mentioned,193.1 except indirectly in the fictitious lamentations for
some buried hero, annually and ceremoniously lamented, such as
Achilles. Nor can we find in earlier Hellenic ethic the clear
recognition of fear and humility among the religious virtues,193.2
while both are paraded in the inscriptions of the later Babylonian
kings, even in those that reveal a monstrous excess of pride.193.3
The Hellenic god might punish the haughty and high-minded, he did
not love the grovelling, but rather the man of moderate life, tone, and
act. Such is God for the civic religion of the free man; while the
Babylonian liturgy reflects the despotic society. The Hellene, for
instance, does not try to win for himself the favour of the divinity by
calling himself his slave. And the common phrase found on the
Greek Christian tombs, ὁ δοῦλος τοῦ Θεοῦ, has passed into
Christianity from Semitic sources.193.4 This single fact illustrates,
perhaps better than any other, the different temper of the old Oriental
and old European religions; and there is a curious example of it in
the bilingual Graeco-Phoenician inscription found in Malta,194.1
commemorating a dedication to Melkarth or to Herakles Ἀρχηγέτης:
the Phoenicians recommend themselves to the god as “thy slaves,”
the Greeks use neither this nor any other title of subservient flattery.
In this connection it is well to note the significance of marking the
body of the worshipper by branding, cutting, or tattooing with some
sign that consecrated him as slave or familiar follower to the divinity.
The practice, which may have been of great antiquity, though the
evidence is not earlier than the sixth century B.C., was in vogue in
Syria, Phrygia, and in early Israel, and was adopted by some
Christian enthusiasts, but no proof of it has yet been adduced from
Mesopotamia. It was essentially un-Hellenic, but was apparently
followed by some of the Dionysiac thiasoi as a Thracian
tradition.194.2
In fact, it is only in the latest periods that we find in Hellas an
individual personal religion approaching the Babylonian in intensity.
The older cult was communal and tribal rather than personal; even
the household gods, such as Zeus Κτήσιος and Ἑρκεῖος, the gods of
the closet and storehouse, the hearth-goddess, were shared by the
householder in common with the nearest circle of kindred. These
cults were partly utilitarian, and the moral emotion that they
quickened was the emotion of kinship: they do not appear to have
inspired a high personal and emotional faith and trust. Nor usually
had the average Hellene of the earlier period the conception of a
personal tutelary divinity who brought him to life, and watched over
his course, preserving, rebuking, and interceding for him. The
Babylonian fancy of the great king sitting in infancy on the lap of the
goddess and drinking milk from her breasts would not commend
itself to the religious sense in Greece.
In Mesopotamia and in the other Semitic communities the fashion
of naming a child after the high god or goddess was very common—
commoner I am inclined to think than in Hellas, though in the latter
country such names as Demetrios, Apollodoros, Zenon, Diogenes,
point to the same religious impulse; but they appear to have arisen
only in the later period. The Hellenic language did not admit, and
Hellenic thought would not have approved of, those mystic divine
names, which express as in a sacred text some quality or action of
the divinity, such as we find in the Bible (“the Lord will provide”), and
in pre-Islamitic inscriptions of Arabia, Ili-kariba, “My God hath
blessed”; Ili-azza, “My God is mighty”; Ili-padaja, “My God hath
redeemed.”195.1 Such names served as spells for the protection of
the child, and are speaking illustrations of the close personal
dependence of the individual upon the god.
This is also illustrated by another fashion, possibly ancient, of
Semitic religious nomenclature: not only was the individual frequently
named after the deity, but the deity might sometimes receive as a
cult-title the name of the individual. Of this practice among the
polytheistic Semites the only examples of which I am aware come
from a late period and from the region of Palmyra: Greek inscriptions
of the late Imperial era give such curious forms as Θεὸς Ἀὐμοῦ,
Θεὸς Οὐασεάθου, Θεὸς Ἀμέρου:196.1 and these descriptive names in
the genitive must designate the principal worshipper or founder of
the cult; they are mostly un-Greek, as the religious custom certainly
is, which is illustrated by such ancient Biblical expressions as “the
God of Abraham,” “the God of Jacob.” We may find an example of
the same point of view in the Phrygian title of Μὴν Φαρνάκου in
Pontus, if we take the most probable explanation, namely, that it is
derived from the Persian Pharnakes, the founder of the cult;196.2 and
again in a Carian dedication to Zeus Panamaros Ἀργύρου, as
Ἄργυρος is found in the same neighbourhood as the name of a living
man.196.3
The only parallel that Hellenic religion offers is the doubtful one,
Athena Αἰαντίς, whose temple is recorded at Megara:196.4 it may be
that the goddess took her title from the hero because his grave was
once associated with the temple. In any case, it is not so striking that
the mythic hero should stand in this intimate relation with the deity as
that the living individual should.
The ecstatic and self-prostrating adoration of divinity which is
characteristic of the Babylonian temper might manifest itself at times
in that excess of sentiment that we call sentimentality: we catch this
tone now and again in the childlike entreaties with which the
supplicator appeals to the deity as his father or mother; in the poetic
pathos of the hymns to Tammuz, which sometimes remind us of the
sentimentality of some of our modern hymns: he is called “Lord of
the tender voice and shining eyes”; “he of the dove-like voice.”197.1
Such language may be called “hypokoristic,” to use a Greek phrase;
it belongs to the feminine sentiment in religion, and we are familiar
with it in our own service. No echo of it is heard in the older Greek
religious literature nor in any record of Greek liturgy. We can, indeed,
scarcely pronounce on the question as to the tone to which primitive
Greek wailing-services were attuned. We have only a few hints of
some simple ancient ritual of sorrow: the pre-Homeric Greek may
have bewailed Linos and Hyakinthos, as we hear that the Elean
women in a later period bewailed Achilles; but if, indeed, the
fragment of a Linos-threnody that the Scholiast on Homer has
preserved for us is really primitive,197.2 it has some pathos, but much
brightness and nothing of the Babylonian sentimentality. The spirit of
the Greek religious lyric strikes us as always virile, and as likely to be
unsympathetic with the violent and romantic expression of sorrow or
with endearing ecstasy of appeal.
The other trait that should be considered here in the religious spirit
of the Mesopotamian Semites is fanaticism, an emotional quality
which often affords a useful basis of comparison between various
religions. This religious phenomenon is best known by its deadly
results; but in itself it is most difficult to define, as are other special
moral terms that imply blame and are highly controversial. It is only
found among those who feel their religion so deeply as to be
relatively indifferent to other functions of life. We impute fanaticism
when the tension of religious feeling destroys the moral equilibrium
or stunts development of other parts of our nature, or prompts to acts
which, but for this morbid influence, would excite moral indignation. It
may display itself in the artistic and intellectual sphere, as by
iconoclasm or the suppression of arts and sciences; or in the
discipline of individual life, as by over-ascetic self-mortification. Its
coarsest and most usual manifestation is in war and the destruction
of peoples of alien creed. A war or a slaughter is called fanatical, if
its leading motive is the extermination of a rival religion, not for the
sake of morality or civilisation, but as an act in itself acceptable to
one’s own jealous god. The ascetic type of fanaticism is specially a
product of the Far East: the murderous type is peculiar to the Semitic
spirit, when unchastened by a high ethical sympathy or a sensitive
humanism; for the chief record of it is in the pages of the history of
Israel, Islam, and Christianity, so far as this last religion has been in
bondage to certain Semitic influence. It is a question of interest
whether we find fanaticism of this type in the Mesopotamian area
and in the ancient polytheistic communities of the Western Semites.
We might expect to find it because of the intensity of the religious
spirit that seems to have been a common inheritance of all these
stocks. The more fervent the worship, the more is the likelihood that
the dangerous idea of a “jealous” god will emerge, especially when
races are living under the illusion of the “fallacy of names.” By a fatal
logic of devotion, the jealous god may be thought to favour or ordain
the destruction of those who worship the deity under other names,
which meant, for the old world, other gods. Only this must be
carefully distinguished from the other more innocent idea, proper to
all tribal religions, that the deity of the tribe, like a good citizen, will
desire victory for his people’s arms.
As regards Mesopotamia, in his History of Ancient Religions Tiele
finds in Assyrian history the same traces of murderous fanaticism as
in Israelitish.199.1 So far as I have been able as yet to collect the
evidence, this statement appears to contain some exaggeration. For
I have not found any record of a war that an Assyrian or Babylonian
ruler undertakes at the command of a “jealous god” against a people
whose only offence is an alien worship. The motives for a war
appear to be of the ordinary human and secular kind; Palestine, for
instance, is attacked, not because Marduk or Asshur personally
hates Jahwé, but because the country holds the key of the route to
Egypt. Such Biblical narratives as the destruction of Jericho, Ai, and
the Amalekites find no real parallel in Mesopotamian chronicles. Yet
in these also the temper of homicidal religion is strong enough to be
dangerous. Neither in the Babylonian nor in the Assyrian divinities is
there any spirit of mercy to the conquered. On that early relief of
Annabanini of the third millennium B.C., the goddess leads to the
king the captives by a hook in their noses to work his will upon
them.199.2 And in the later records of the great Assyrian Empire, the
deities appear prominently as motive forces, and the most cruel
treatment of captives is regarded as acceptable to them. The worst
example that Tiele quotes is the great inscription of Assurbanipal,
who, after speaking of himself as “the Compassionate, the King who
cherishes no grudge,”199.3 naïvely proceeds to narrate how he tore
out the tongues of the rebels of Babylon, hewed their flesh into small
pieces, and flung it to the dogs, swine, and vultures; and “after I had
performed these acts, I softened the hearts of the Great Gods, my
Lords.” But the lines that follow suggest that what “softened their
hearts” was not so much the tortures and massacres, which they
might approve of without directly commanding, but the religious
measures that Assurbanipal immediately undertook for the
purification of Babylon, whose temples had been polluted with
corpses. Again, Tiglath-Pileser III. speaks of himself as the Mighty
One “who in the service of Asshur broke in pieces like a potter’s
vessel all those who were not submissive to the will of his god”;200.1
and a little later, Sargon recounts how “Merodach-Baladin, King of
the Chaldaeans,… who did not fear the name of the Lord of Lords…
broke the statues of the great gods and refused his present to
me.”200.2 Yet it would be a misunderstanding to speak of these, as
Tiele does, as if they were wars of religion, like the Crusades or the
war against the Albigenses. Asshur sends the king to the war
invariably, but rather for the sake of the king’s profit and glory than
for the propagation of Asshur’s religion; for his enemies are very
frequently of the same religion as himself. The above phrases must
be understood probably in a political sense rather than a religious;
the god and the king are so intimately associated that whoever
insults or injures one, insults or injures the other. We may suspect
that Merodach-Baladin’s breach of the divine statutes consisted in
his omitting to send his usual tribute to Sargon. When two men had
spoken scornfully of the gods of Assurbanipal, both the king and the
gods would wish to avenge the insult:200.3 it was natural, therefore,
for Assurbanipal to torture and flay them. In warring against an alien
people, the king is warring against alien gods; therefore if he sacks
the alien city he may capture and take away, or—more rarely—
destroy, the city’s gods. Thus Asarhaddon had taken away the idols
of Hazailu, King of Arabia, and of Laili, King of Iadi; but when these
kings had made submission and won his favour he returned to them
the holy images, having first inscribed them with his own ideogram
and a mark of the might of Asshur:201.1 thus the gods, having the
brandmark of the great king and the imperial deity, become tributary
divinities. Or if he wished to wipe a people out, the Assyrian
conqueror might break their idols to dust. Thus Assurbanipal broke in
pieces the gods of the Elamites—the most deadly foes of Babylon—
and thereby “eased the heart of the Lord of Lords.”201.2 But many of
the Elamite deities he led away; and of one of them he speaks in
terms of reverence, Sašinak, the god of destiny, “who dwells in
hidden places, whose working no one sees.”201.3 It is more difficult to
understand why Sanherib should boast to have destroyed the deities
of Babylon after his capture of the city; for the leading Babylonian
divinities certainly belonged to the Assyrian Pantheon.
The evidence here quoted justifies us in attributing fanaticism to
the religious temper of Babylonia and Assyria; not because the wars
were evangelising, undertaken in the service of religion, but because
the savage cruelty that accompanied them is deemed, as it is in the
early Hebraic view, acceptable to the national gods. The idea of
divine mercy is potent in the liturgies; but neither morality nor religion
would appear to have inculcated any mercy towards the alien foe;
and this lack of moral sympathy may be termed a passive fanaticism.
The same fanatic temper might be traced in the savagery of the
punishments for offences against the State-religion, and was
reflected also at times in the legal code.202.1
From other polytheistic Semitic communities we have no record,
so far as I am aware, that bears on the phenomenon that we are
considering, except the famous Moabite Stone, of which the style is
in this respect strikingly Biblical. Mesha regards himself as sent by
his god Chĕmosh to take Nebo from Israel, and he explains why he
slaughtered all within the walls, man, woman, and child, “for I had
devoted it to Chĕmosh.” Fanaticism does not so naturally belong to
polytheism as to monotheism; yet it seems that at times the
polytheistic Semites could be as prone to this vice of the religious
temper as the monotheistic Israelites.
Speaking generally, and in comparison with the ancient Semitic
and the mediaeval and even later spirit of Europe, we must
pronounce the Hellenic temperament of the earlier and classical
period as wholly innocent of fanaticism. The history of Hellas is not
stained by any “war of religion”; and no religious hierarchy in Hellas
ever possessed the power or displayed the will to suppress art or
persecute science and thought. It might occasionally happen that
individuals were in danger of punishment if they insulted or openly
flouted the civic worship or introduced new deities; but that the State
should protect itself thus is not fanaticism. The least tolerant of cities
was the enlightened Athens. But her record in this matter is a
spotless page compared with the history of any later European
State. Hellas owed this happy immunity to her cooler religious
temper, to the equilibrium of the other life-forces within her, and to
her comparative freedom from dark and cruel superstitious fears.
It is specially in regard to such salient features of the religious
temperament as we have been considering that the early Hellene
asserted his spiritual independence of the East.
CHAPTER XII.
Eschatologic Ideas of East and West.
Religions are often found to differ fundamentally in their

conceptions of the fate of the departed spirit of man, and in the
prominence and importance they assign to the posthumous life.
There is, in fact, a group of religions which we might term “other-
worldly,” because certain dogmas concerning the world after death
are made the basis on which their aspirations and ideals of conduct
are constructed; to this group belong Christianity, Buddhism, Islam,
and the old Egyptian creed. There are other religions, also of a
highly developed type, in which eschatologic doctrine plays no
forcible or constructive part either in the theology or in the ethics.
Such were the Mesopotamian, primitive Judaism, and the early
Hellenic.
Our question concerning the evidences in the second millennium
of Mesopotamian influences on the Western Aegean demands, then,
at least a brief comparison of the Sumerian-Babylonian, and Hellenic
eschatology. Our knowledge of the former is derived from certain
epic poems, the Epic of Gilgamesh, “The Descent of Ishtar,” and the
poem dealing with the marriage of Nergal and Erishkigal, the Queen
of the dead; secondly, from a few inscriptions of various periods,
alluding to burial or the status of the dead; thirdly, and this is the
most important source, from the recent excavations of certain
“necropoleis.”205.1 The Hellenic facts have been sufficiently set forth
for the present purpose in a former series of lectures.
In the picture of the lower world presented by the two literatures, a
certain general agreement is discoverable, but none closer than they
reveal with the conceptions of other peoples. Both accept as an
undoubted fact the continued existence of the soul after death, and
both imagine this existence as shadowy, profitless, and gloomy. Both
also vaguely locate the abode of the soul under the earth, with a
downward entrance somewhere in the west.205.2 In both we find the
idea of a nether river to be crossed, or “the waters of death”;205.3 of a
porter at the gates of “hell,” and of a god and goddess as rulers of
the lower world; while the mountain of the Babylonian underworld on
which the gods were supposed to have been born was unknown to
Hellenic mythology.205.4 Such coincidences are no criterion of a
common origin of belief; for these traits recur in the death-lore of
many and widely scattered races.
As against them, we must take into account certain salient
differences. The lot of the departed in the Babylonian epic account
appears drearier even than in the Homeric, just as the Babylonian
religious poetry inclines to the more sombre tones and the more
violent pathos. The dead inhabit “the house wherein he who enters is
excluded from the light, the place where dust is their bread, and mud
their food. They behold not the light, they dwell in darkness, and are
clothed, like birds, in a garment of feathers; and over door and bolt
the dust is scattered.”206.1 This is more hopeless than the Homeric
meadow of Asphodel, where the souls still pursue the shadow of
their former interests, and some tidings of the earth may penetrate to
give them joy. Also, the demoniac terrors of the lower world are more
vividly presented in Babylonian than in Hellenic literature and art.
The demons of disease that perform the bidding of Allatu, the Queen
of Hell, are closely connected with the ghost-world; we learn from the
formulae of exorcism that the haunting demon that destroyed a
man’s vital energies might be a wandering spectre. “O Shamash, a
horrible spectre for many days hath fastened itself on my back, and
will not loose its hold upon me.… he sendeth forth pollution, he
maketh the hair of my head to stand up, he taketh the power from
my body, he maketh my eyes to start out, he plagueth my back, he
poisoneth my flesh, he plagueth my whole body… whether it be the
spectre of my own family and kindred, or the spectre of one who was
murdered, or whether it be the spectre of any other man that
haunteth me.”206.2
Now it is possible that the curse of the demon was powerful both
in the earlier and later periods of ancient, as it is powerful to-day in
modern, Greece; the demon might be a ghost or a revenant. And it
has been the ambition of a small group of scholars in this country to
prove that the higher literature and art of Greece, that reveals so fair
and sane an imagination of the unseen world, is only a thin veil

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Solidarity Across Generations:

Comparative Law Perspectives Eri

The Law of Emergency Powers: Comparative Common Law

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Eri Kasagi Editor

More information about this series at http://www.springer.com/series/11943

Académie Internationale de Droit Comparé

Solidarity Across Generations

ISSN 2214-6881 ISSN 2214-689X (electronic)

© Springer Nature Switzerland AG 2020

This book is the outcome of the General Congress of International Academy of

Bordeaux, France Eri Kasagi

Part I General Report

Part II Solidarity Through Pension Systems

Part III Different Types of Solidarity Facing the Needs

Questionnaire on Solidarity Across Generations . . . . . . . . . . . . . . . . . . . 305

1 Introduction: Issues and Context

1.1 ‘Solidarity Across Generations’ from the Perspective

© Springer Nature Switzerland AG 2020 3

1.2 Deﬁnitions of “Generation” and Different Types

should be distinguished: private solidarity and public solidarity.4 Private solidarity

1.3 Different Issues in Different Demographic and Economic

1.4 Developed Welfare States or Countries with Limited

1.5 Appearance of a New Problem: Long Term Care (LTC)

1.6 Three Main Topics of Discussion

2 Solidarity in Pension Systems

2.1 Different Types of Pensions

2.2 Old Age Pension or Retirement Pension?

Another important criterion in terms of ‘solidarity between generation’ is the

2.3 Crisis of the Pension System: How Can Pensioner’s

An aging population affects pension systems very differently, depending on their

2.3.2 Reducing Beneﬁts in Pay-As-You-Go Pension Systems

supra-national norms.25 In Finland,26 for example, this protection is based on the

the government, this article is interpreted as a ‘standstill’ obligation for lawmakers.

2.3.3 The Legislative and Political Limitations of Pension Cuts

2.3.4 Different Perspectives on the Question of Pension Cuts

considered to be a withdrawal from promises made by lawmakers in the past54

3 Family Solidarity and Public Solidarity55

3.1 Support Duties Between Adult Members of a Family

3.1.1 Different Types of Support Obligations

children.61 The reciprocity of support is especially emphasized in this child-parent

3.1.2 Reinforcing Support Duties in the Context of an Aging Society

A more interesting and fruitful ground of comparison is that which

Religions are often found to differ fundamentally in their

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