Labour Law in an Era of Globalization: Transformative Practices and Possibilities.

Vol. 14 No. 8 (August 2004), pp.662-666

LABOUR LAW IN AN ERA OF GLOBALIZATION: TRANSFORMATIVE PRACTICES AND POSSIBILITIES, by Joanne Conaghan, Michael Fischl, and Karl Klare (eds.). New York: Oxford University Press, 2004. 578pp. Paper $35.00 / £25.00. ISBN: 019927181X. Hardback. $95.00 / £60.00. ISBN: 019924247X

Reviewed by Lawrence E. Rothstein, Department of Political Science, University of Rhode Island. Email: ler@uri.edu

This book is a collection of essays stemming from meetings beginning in 1994 of legal scholars committed to a progressive transformation of labor law in order to meet the challenges of globalization and deregulation. The organization of scholars, INTELL (the International Network on Transformative Employment and Labour Law), has its roots in the Critical Legal Studies movement and stresses, from many perspectives, improving the contribution of labor law to social justice and egalitarian social change. While section headings attempt to group the essays according to subject matter, as with most such collections, there is little theoretical unity. Because of their area of expertise and the general theme of the book, the authors do, somewhat reluctantly, confine themselves to analyzing law and legal structures. There are, to be sure, several interesting essays that make this collection worth reading.

The first section “Labour Law in Transition,” containing essays by Karl Klare and Massimo D’Antona (published posthumously), lays out the central themes of the book. These are excellent essays, not because they add much new to longstanding analyses, but because they are good, tightly written summaries of the problems encountered by labor law. Klare’s position is that the traditional labor law strategy of fostering worker power to counter the power of employers over the workplace and the labor market and to establish a high level of minimum labor standards and entitlements is no longer an effective means for more justly distributing income and resources. This strategy is problematic because the nature of employment has changed. The conventional employment relationship of stable, long-term, full-time, family wage earning work tied to a particular employer and establishment no longer represents the situation of most workers in highly developed countries, and even less so in underdeveloped countries. The capital/labor dichotomy has been fragmented with the massive entry into the workforce of previously excluded groups – women, racial minorities, new immigrants, guest workers, workers in third world countries, and young workers unwilling to accept their assumed subordination to the employers’ prerogative of managing work tasks. Greater international economic integration has exacerbated these trends.

D’Antona similarly suggests a reconceptualization:

“[A] labour law that is no longer identified with the nation‑state . . . ; that no longer has as its exclusive centre of gravity the labour relations of stable, full-time workers, . . .; and that does not merely look after the material needs of a [*663] standardized worker, conceived abstractly as the weaker party to the contract who is subject to risks in the face of the employer’s hierarchical organization.” (pp.39-40)

These tendencies are not exactly new. Many have noted that the “conventional employment [*664] relationship” was always more idealized than actual for most workers, and its ascendance, even as an ideal, was short-lived. International economic integration is probably less in the present day than it was in the age of imperialism. Contemporary economic integration unlike that of earlier times, rather than representing a disappearance of the nation-state, responds to the demands on capital of more nation-states, including the less developed ones, and capital’s need to pass the burdens of those demands down to workers both at home and abroad.

A close reading of Klare’s and D’Antona’s essays reveals that conservative re-regulation (billed as deregulation) is a strong reason that traditional labor law and labor movements are in jeopardy. This re-regulation is a response to the pressure on profits and control created by the demands of many previously excluded groups of workers in both the developed and less developed countries. Globalization is only one element, and not the most important one, in the transformation of the work, political and economic environments in which labor law functions.

The rest of the essays in the book take up one or more of these themes. As an old radiclib, I was saddened by the tentativeness of the approaches and the seeming agreement that militant confrontation of the power of capital was a thing of the past that cannot and should not be revived. For example, Joanne Conaghan’s essay, “Women, Work and Family: A British Revolution?” opening Part II of the book, takes a reservedly favorable view of New Labour’s Third Way and its encouragement of family friendly policies. These policies, primarily research efforts and employer incentive funds, are designed to improve minimum wages, the conditions of part‑time employment, child care and maternity rights. Conaghan finally admits that the new British programs fall short of existing policies in much of the EU and that they still privilege the notion of full-time paid work while seeking to make it easier for women to engage in paid employment.

The other two essays in this section, titled “Contested Categories: Work, Worker, and Employment,” continue the theme. Paul Benjamin analyzes South Africa’s efforts to deal with non‑standard employment relationships in its 1995 Labor Relations Act and the related jurisprudence. In South Africa, as elsewhere, whether a person is labeled an employee or an independent contractor has important legal ramifications regarding that person’s rights and protections. Employers are encouraged to have a workforce largely made up of “independent contractors” avoiding taxes, restrictions on hiring and firing, unionization, equipment costs and workers’ benefits. In reality many of these contractors are dependent on one employer for work. Benjamin argues that a category of employment called “dependent self-employment” should be recognized by legal doctrine and endowed with many, if not all, of the protections accorded the conventional indeterminate duration employment relationship. As Benjamin himself notes, this is a position that the ILO has advocated for some time. Lucy Williams argues that the distinction in social welfare law between workers, citizens, aliens, possessors of wealth and dependents, is supported as well by all areas of public and private law. These legally created identities justify little concern for some and lavish protections for others. She suggests that labor and social welfare lawyers must go more deeply into the entire legal regime in order to further egalitarianism and social welfare.

Part III, “Globalisation and its Discontents,” begins to attack the myths that are used to support neo‑liberal, free market globalism. Kerry Rittich argues that “free” markets are considered efficient because national legal systems allow the externalization of important costs to families and particularly women who support these markets with unpaid or very low paid work. Bruce Langille suggests that efficiency must be measured in terms of purposes to be achieved. If the purpose of an economy is to assist people in living freer, “longer, better, more meaningful, and productive lives” (p.152), then labor rights must be guaranteed. Dennis Davis takes the optimistic view that capital mobility is limited by the risks and uncertainties of labor markets where basic labor and human rights are not respected.

Part IV begins by taking up particular legal relations and their transformation in the new economy. The agenda is to show that these changes are as much political as caused by a new economic logic. Simon Deakin traces the conventional individual contract of employment. He argues that the decline of collective bargaining, a product of government policies, has not resulted in greater individualization of employment contracts, but greater standardization increasingly weighted in favor of management prerogatives. Paddy Ireland argues that government policies have allowed corporate governance and property rights to escape democratic control and to be turned over to market contingencies. Corporations receive certain rights and protections under national law. In exchange they must be given certain public responsibilities and accountability. Democracy must be exercised within and without the corporation and cannot be displaced by market forces. Makoto Ishida’s examination of deaths, including accidents, disease and suicide, caused by overwork illustrates the way informal norms affect the legal aspects of the employment relationship. Alan Hyde, with some optimism, notes that “high-velocity” labor markets such as in Silicon Valley have destabilized the conventional employment relationship, but can be made more favorable to technical workers by strong networking techniques and the limitation of trade secret protection, restrictive covenants and non-competition agreements. Richard Fischl, relying in part on his NLRB experience, suggests that in the U.S. improving worker protection in the absence of collective bargaining requires replacing “employment at will” with “just cause” dismissal and placing the burden of proof on employers in employment matters.

The essays in “Border/States: Immigration, Citizenship, and Community,” Part V, accept the decline of nation-state power over employment [*665] relations, at times even approving of it. Guy Mundlak, drawing on Middle Eastern examples, argues that cross-border relationships between towns, interest groups and trade unions are a more fruitful avenue for addressing the disparity between high and low worker protection labor markets than is large scale regionalization. Bruno Caruso, looking at immigrant and guest workers in the EU, argues that labor unions and EU law should not simply harmonize through anti-discrimination policies the status of these workers with citizen workers. Both the risk of destroying employment opportunities for foreign workers and the special needs of these workers must be taken into account. The last two essays of this section deal directly with transforming the concept of citizenship to serve egalitarian and humanitarian purposes. Margriet Kraamwinkel points out that although “citizenship” in the EU is primarily economic and based on doing paid work, there has been some broadening of the concept for women in non-traditional work and homemaking. Linda Bosniak notes the progressive use of the concept of citizenship to include at the national level a right to a decent standard of living and the weak beginnings of a transnational notion that includes human rights and economic redistribution.

Part VI directly confronts the issue of labor solidarity and union decline. Frances Raday, marking the difference between nations where labor power and union density have declined precipitously and those where the decline has been smaller or non-existent, reports that specific anti-union, pro-capital policies correlate with major reductions in the strength of the labor movement. James Atleson argues that the failure to manifest international labor solidarity in certain countries is also related to the pressures put on the labor movement by domestic labor and economic policies. Carlos De Buen Unna attributes the weakening of the Mexican labor movement to the backlash caused by its massive co-optation under the one-party reign of the PRI. The remaining two essays in Part VI advocate a stronger use of identity politics by unions and the supporters of progressive movements. This requires shifting organizing away from the workplace and into the community and the neighborhood and the creation of coalitions among all of the progressive forces whose focus is in that local arena.

The final section looks at different aspects of the law and the contributions that legal activism may or may not be able to make toward social transformation. Hugh Collins argues that “A Third Way in Labour Law” requires governmental flexibility and rule making that encourages the partnership of business and labor in promoting growth and efficiency. Workers’ rights must be protected but in ways that provide a choice of methods – individual or collective, legal or contractual, procedural or substantive – to the worker, labor union and employer. Harry Arthurs, accepting that the balance of power between employers, governments and workers has inexorably changed in favor of the former, suggests that the establishing of voluntary corporate codes of conduct might be a fruitful method for improving labor market regulation. The use of codes confirms that government must negotiate rather than mandate, but establishes a [*666] moral high ground and alliances with progressive businesses. Claire Kilpatrick recognizes that transnational legal structures have allowed for multi‑level legal attacks on gender inequality and have resulted in some notable successes, but she warns that such successes need to be translated into new institutions and practices that function without the constant resort to law. Davis, Macklem and Mundlak conclude the volume with the point that, although civil, political and social rights are under strong attack by neo-liberal forces, their defense through the legal system is a necessary and ultimately successful strategy for progressive lawyers.

As has so often been noted in LPBR reviews, to criticize the essays for their failure to toe a coherent theoretical line or for their failure to integrate massive amounts of empirical data is simply to say that one wishes this were a different book. As I sympathize with the desire of the authors to found a more egalitarian and humane world and the importance of labor relations in that effort, I would have loved it if they had written the unanswerable argument for, and the irresistible means to, a more just world. The essays, though diverse, are insightful, though not radical or novel in their proposed solutions, and provide much food for thought and action.

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