Reframing Deliberative Cosmopolitanism: Perspectives on Transnationalisation and Post-national Democracy from Labor Law

Abstract

Cosmopolitan constitutionalism contends that supranational governance can achieve a democratic character. It assumes that an essential core of the concept of democracy can be disembedded from the notion and institutions of the constitutional nation state and re-planted within transnational governance systems, in the EU and beyond, even while these fail to provide for representation and accountability along traditional lines. It further asserts that social ordering deriving from transnational governance that is democratic will be legitimate.

Full text

ARTICLES
Reframing Deliberative Cosmopolitanism: Perspectives
on Transnationalisation and Post-national Democracy
from Labor Law
Claire Methven O’Brien∗
A. Introduction
Cosmopolitan constitutionalism contends that supranational governance can
achieve a democratic character. It assumes that an essential core of the concept of
democracy can be disembedded from the notion and institutions of the
constitutional nation state and re-planted within transnational governance systems,
in the EU and beyond, even while these fail to provide for representation and
accountability along traditional lines.1 It further asserts that social ordering deriving
from transnational governance that is democratic will be legitimate.2
One “yardstick” for these two properties, democracy and legitimacy, that has been
suggested is deliberative. Democratic legitimacy, it is said, “requires public
justification of the results to those who are affected by them”. Deliberation is further
claimed to embody the democratic principles of congruence (“those affected by
laws should also be authorized to make them”) and accountability (which relates to
reason-giving practice “wherein the decision-makers can be held responsible to the
citizenry, and that, in the last resort, it is possible to dismiss...incompetent rulers”).3
Within this conceptual framework, the issue has been raised of the dynamics of
interaction of transnational economic integration, proceeding through law, as in the
∗
Doctoral Candidate, European University Institute, and Researcher, Reconstituting Democracy in
Europe (RECON), http://www.reconproject.eu/. Email: Claire.OBrien@EUI.eu.
1 E.g. Erik Oddvar Eriksen & John Erik Fossum, “Europe in Transformation. How to Reconstitute
Democracy?”, RECON Online Working Paper 2007/1, (2007), 4.
2 See, further, Erik Oddvar Eriksen & John Erik. Fossum, Europe in Search of Legitimacy: Strategies of
Legitimation Assessed, 25 INTERNATIONAL POLITICAL SCIENCE REVIEW 435 (2004).
3 Eriksen and Fossum, supra note 1, 4, and further, at 8: “The public sphere located in civil society holds a
unique position, because this is where everyone has the opportunity to participate in the discussion
about how common affairs should be attended to. It signifies that equal citizens assemble into a public,
which is constituted by a set of civil and political rights and liberties, and set their own agenda through
communication” (emphasis added).

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EU and WTO, on one hand, and constitutional norms and standards, of both
national and international origin, subsumed by such systems, on the other.4 There is
a need to assess, it has been contended, whether the package once associated with
state citizenship, including all of the classical attributes of legal, political and socio-
economic citizenship, can be reconstructed and reconfigured across different
constitutional sites, or whether the language and practices of constitutionalism
beyond the state instead hollow out the capacity for full constitutional citizenship
at nation state level, without adequate replacement or substitution above or below.
To this inquiry, this article contributes a study of recent reflections on the
consequences of global economic integration within the field of labor law. This
provides the basis for a synchronic comparison, in outline, across legal sub-
disciplines. In their framings, methodologies, precepts, and functional identities,
social science disciplines and sub-disciplines evince and prosecute a range of
cognitive and normative concerns.5 Viewing the transformations and potentials of
globalization and supranational governance through the lens of labor law ought,
then, to help to illuminate the preferences and selections of deliberative
cosmopolitan constitutional theory, and so offer means to refine and enrich it.
The first main finding to emerge from this exercise is that the working definitions of
democratic legitimacy, congruence and accountability stated at the start tend to re-
produce a limited democratic horizon that is classically liberal in orientation.
Axiomatically and functionally, labor law is concerned with the sphere of market
relations. Normatively, it is engaged by challenges to individual autonomy which
arise in the course of work - its understanding of which essentially embraces
distributive issues – and which may be crystallized in “private” legal relations,
principally contract. During the twentieth century, labor law – through state
constitutions, national and sectoral collective agreements, statute and court
decisions 6 - articulated individual and collective rights in response to such
challenges. At various moments, it sought to extend the scope of application of
concepts of civil rights, citizenship and democracy into the realm of industrial
production, as a framework for the conduct of economic life (since, originally, these
4 This question is pitched within the RECON project by Work Package 9, Global Transnationalisation and
Democratisation Compared, see further http://www.reconproject.eu/projectweb/portalproject/
ResearchObjectives WP9.html.
5 Renate Mayntz, Embedded Theorizing. Perspectives on Globalization and Global Governance, MPIfG
Discussion Paper 05/14 (2005); Mark Bevir & R.A.W. Rhodes, A Decentred Theory of Governance: Rational
Choice, Institutionalism, and Interpretation, Berkeley Institute of Governmental Studies Working Paper
2001-10, (2001).
6 See, for example, Florian Rödl, Towards a Reflexive Labor Constitution. On the Form of Regulating Labor
Relations in Europe, Cidel concluding conference Paper No. 14 (2005).

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set parameters channeling the conduct of politics).7 Feminist labor analyses, for
their part, have conclusively shown interdependencies, and the gendered nature of
the boundary between market/non-market rights, rewards, and statuses, within the
constitutional frameworks of existing democratic states.8
By contrast the “deliberative yardstick”, as defined above, implicitly reaffirms a
liberal constitutional paradigm 9 that restricts the scope of democratic self-
governance, citizenship and associated rights to one side of the conventional public-
private divide. Analysis with this starting point, it is suggested, already hollows out
the capacity for state constitutional citizenship, including all of the classical
attributes of legal, political and socio-economic citizenship, before it begins.
Deliberative cosmopolitan approaches to transnational constitutionalism should
instead, I argue, explicitly acknowledge and engage with communication, rule-
making and coercive power10 within the economy as well as in the “public” sphere
and civil society, and should include in the scope of study the altered dynamics
affecting them that stem from transnationalization’s de-borderings and re-
borderings.11 If its proponents elect to take the other course, at the very minimum,
they must openly register and defend this choice as such.
The second conclusion has a methodological basis. Labor law - more frequently
than constitutional legal theory - historicizes its concepts and institutions.12 It thus
highlights the co-evolution of democratic constitutions with industrialization and
the development of national welfare regimes. Social integration, it underlines, has
material as well as political and cultural bases: national constitutions represent
settlements with distributive as well as political dimensions, and modern
democratic legitimacy has depended on the delivery of acceptable standards of
living as much as on public justification, formal rights of political participation or
7 T.H. MARSHALL, CITIZENSHIP AND SOCIAL CLASS (1992 (1950)), Harry Arthurs, Developing industrial
citizenship: a challenge for Canada’s second century, XLV LA REVUE DE BARREAU CANADIEN 786 (1967);
CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY, (1970), PHILIP SELZNICK, LAW, SOCIETY AND
INDUSTRIAL JUSTICE, (1978).
8 See, classically, Frances Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96
HARVARD LAW REVIEW 1497 (1983).
9 Jürgen Habermas, Paradigms of Law, 17 CARDOZO LAW REVIEW 771, (1996).
10 As discussed further, in interview, by Iris Marion Young and Jane Mansbridge: Archon Fung,
Deliberation’s Darker Side: A Discussion with Iris Marion Young and Jane Mansbridge, 93 NATIONAL CIVIC
REVIEW 47 (2004).
11 SASKIA SASSEN, TERRITORY, AUTHORITY, RIGHTS. FROM MEDIEVAL TO GLOBAL ASSEMBLAGES (2006).
12 THE ECONOMY AS POLITY: THE POLITICAL CONSTITUTION OF CONTEMPORARY CAPITALISM (Christian
Joerges, Bo Stråth and Peter Wagner eds., 2005) marks an exception.

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the power to dismiss rulers.13 “[T]he solidaristic basis of the nation state, as well as
of the welfare state”, it has been said, encompasses more than “the symbolic ‘we’”.14
On the basis indicated by labour law, deliberative cosmopolitanism’s “results”
requiring public justification must therefore extend to the material social outcomes
for whose achievement constitutions provide the framework, and which derive not
just from the public but also the private arrangements they permit, including in the
world of work. Moreover, principled calibration of such results – prerequisite to
justification through rational discourse, as deliberative cosmopolitanism would
demand – will require collection and evaluation of information regarding
substantive (including relative) levels of individual and collective welfare, in terms
of both their public and private components.15 There are, in other words, definite
technical-institutional implications, flowing from a normative preference for
deliberative cosmopolitanism, which touch on distribution and “private” social
ordering, in addition to those relating, for example, to supporting the coalescence of
post-national communicative space and party-political representation.
These observations, it is suggested, run flush with, and lend support to, a thick
theory of deliberation, that is, one which sees a wide range of factors, social as well
as personal, as affecting the extent and quality of individual participation in rational
discussion preceding the making and approval of legal norms,16 and the extent to
which these norms express the needs, preferences and values of different social
groups. 17 If we fail explicitly to specify substantive social, welfare and labor
objectives (which may be structured through reference to socio-economic rights18)
as both a goal and pre-condition of reconstructed cosmopolitan democracy, by
contrast, it seems unlikely, in the context of negative market integration
underpinned by law, we will be able to restrain policy trends favoring market
values over social values.
13 See Fred Block, Towards a New Understanding of Economic Modernity, in THE ECONOMY AS A POLITY: THE
POLITICAL CONSTITUTION OF CONTEMPORARY CAPITALISM, 3, 13-14 (Christian Joerges, Bo Stråth & Peter
Wagner eds., 2005) for discussion of perceptions of historical complementarities between market
expansion and popular “protective counter-movements”, despite superficially contradictory objectives,
in the works of Karl Polanyi, Karl Marx and E.P. Thomson.
14 See Fossum & Eriksen (supra, note 1, 20): “A legally integrated state-based order is often seen as
premised on the existence of a sense of common destiny, an imagined common fate…This constitutes the
solidaristic basis of the nation state, as well as of the welfare state…”
15 See Martha Nussbaum, Capabilities as Fundamental Entitlements: Sen and Global Justice, 9 FEMINIST
ECONOMICS 33 (2003).
16 David A. Crocker, Deliberative Participation. The Capabilities Approach and Deliberative Democracy (mimeo,
2004).
17 See IRIS MARION YOUNG, INCLUSION AND DEMOCRACY (2000); also, JACK H. NAGEL, PARTICIPATION (1987).
18 See Nussbaum, supra note 15.

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This leads back to the starting point of much recent deliberative cosmopolitan
theorizing, the crisis of EU constitutionalism. In an early response to that crisis, one
authoritative voice called for efforts “…to conserve the great democratic
achievements of the European nation-state, beyond its own limits”, and so including
“…not only formal guarantees of civil rights, but levels of social welfare, education
and leisure that are the precondition of both an effective private autonomy and of
democratic citizenship”.19 In other words, the resource-distributive dimension of
democratic self-governance, key to both social productivity and social reproduction,
and highlighted here through the lens of labor law, must be embraced by the
“language and practices of constitutionalism beyond the state” if they are to secure,
for the EU, or any other supranational governance system, the legitimacy desired.
I proceed as follows. Section B breaks down recent labor law readings of global
economic integration according to the perceived impact of the latter’s major trends
on its foundational sub-disciplinary concepts and categories: industrial production,
labor, work, the worker, the employment relationship and collective worker
representation. The discussion substantiates the points outlined above. Labor law,
in reflecting on global economic integration, is chiefly concerned with impacts in
the “private” sphere, whether directly via transnationalization of private law, or
indirectly, via market dynamics affecting private law’s conduct or states’ capacity to
regulate in the labor field. In gauging changes to its institutions and norms, labor
law envisions them in social-historical context, products of the interwoven
emergence of markets and democracies.
The following section presents four reconstructions proposed by labor lawyers in
response to a perceived “crisis” of the sub-discipline provoked by transnational
economic integration. Assessing national legislatures and trade unions as now beset
by systematic limitations, each seeks to reanimate labor law’s distributive
democratic agenda by a novel route. Respectively, they concentrate on the contract
of employment; 20 site-level worker representation; 21 the corporation; 22 and
19 See Jürgen Habermas, Why Europe Needs a Constitution, 11 NEW LEFT REVIEW, 5, 6 (2001) (my emphasis).
20 See Hugh Collins, Is There a Third Way in Labor Law?, in LABOR LAW IN AN ERA OF GLOBALIZATION.
TRANSFORMATIVE PRACTICES AND POSSIBILITIES, 449, (Joanne Conaghan, Richard Michael Fischl & Karl
Klare eds., 2002).
21 See Cynthia Estlund, Rebuilding the law of the workplace in an era of self-regulation, 105 COLUMBIA LAW
REVIEW, 319 (2005).
22 See Simon Deakin, The Many Futures of the Contract of Employment, and Paddy Ireland, From Amelioration
to Transformation: Capitalism, the Market and Corporate Reform, both in LABOR LAW IN AN ERA OF
GLOBALIZATION. TRANSFORMATIVE PRACTICES AND POSSIBILITIES, respectively 177, 197 (Joanne Conaghan,
Richard Michael Fischl & Karl Klare eds., 2002).

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supranational social citizenship, re-defined as an expanded set of procedural rights
alongside substantive social and welfare entitlements. 23 Mis-assumptions, I,
however, suggest, invalidate the first three reconstructions. Not so the fourth,
which is recommended as a necessary complement to supranational governance,
capable of countering the tendencies of its modalities (such as subsidiarity and self-
regulation) in practice to autonomize market relations and market actors.
Consequently, it is urged, that this, or a similar vision of social citizenship, must
form an integral element of any model of post-national democracy taking its cues
from deliberative cosmopolitanism. The Conclusion recapitulates the case for an
urgent reframing of the latter.
B. Globalization, transnational economic integration and labor
As a sub-discipline, labor law sees itself as profoundly altered by globalization,
which has acted on its baseline concept, industrial labor, via changes to the various
elements that previously constituted it: industrial production, work, the standard
employment relationship, and the contract of employment. These are also indicated
to have transformed, and partially dissolved, the former foundations of labor
solidarity, as well as its national and international institutional embodiments.
Voiced first in the 1970s,24 but prominently from the mid-1990s, allusions to the
crisis,25 or “disintegration” of labor law, and a need for its re-invention,26 are
commonplace.27 In this section, the bases of these evaluations are examined in
greater detail.
23 See Alain Supiot, The transformation of work and the future of labor law in Europe: A multidisciplinary
perspective, 138 INTERNATIONAL LABOR REVIEW 31 (1999) and ALAIN SUPIOT, AU-DELA DE L’EMPLOI:
TRANSFORMATIONS DU TRAVAIL ET L’AVENIR DU DROIT DU TRAVAIL EN EUROPE. RAPPORT POUR LA
COMMISSION EUROPÉENNE (1999).
24 In 1972, Kahn-Freund observed “the entire basis of our thinking on collective labor relations and
collective labor law is destroyed”, (Otto Kahn-Freund, A Lawyer’s Reflections on Multinational Corporations,
JOURNAL OF INDUSTRIAL RELATIONS (Aus.), 351 (1972).
25 See Massimo D’Antona, Diritto del Lavoro di Fine Secolo: Una Crisi di Identita?, 48 RIVISTA GIURIDICA DEL
LAVORO E DELLA PREVIDENZA SOCIALE 31 (1998); see, also, Hugh Collins, The Productive Disintegration of
Labor Law, 26 INDUSTRIAL LAW JOURNAL 295 (1997).
26 See Karl Klare, The Horizons of Transformative Labor and Employment Law, in LABOR LAW IN AN ERA OF
GLOBALIZATION. TRANSFORMATIVE PRACTICES AND POSSIBILITIES, 3 (Joanne Conaghan, Richard Michael
Fischl & Karl Klare eds., 2002); see, also, Supiot, supra note 23.
27 For example, “…[the] social and political world classically imagined by labor law is disappearing,
gradually in some places, quite abruptly in others”, so that, “labor law must be invented”: see, also,
Klare, supra note 26, 4.

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I. Global Economic and Political Transformations
Concerning globalization trends, labor law shares basic viewpoints with political
science, economics, international relations, and other legal sub-disciplines, refining
and adapting these to its own context and concerns. That the world economy has,
over the last thirty years, undergone qualitative alteration is thus widely accepted.
Technological innovation has extended the horizons of information systems,
accelerated communications, de-materialized goods and services and stimulated the
development of cross-border corporate and social networks. 28 Facilitated by
liberalizations affecting global currency transactions, trade, foreign direct
investment, inter-national capital flows, and privatization, these trends continue to
deepen and thicken transnational economic and political relations, constituting
transnational markets. In turn, this has permitted the rise of multinational
enterprises (MNEs): directly, for example, by permitting MNE entry into formerly
public sectors, and indirectly, by allowing the concentration of market power on a
global scale. Completing the circle, through their legal and commercial praxis, and
in the influence which they wield over policy at national and international levels,
MNEs themselves are agents and promoters of transnational market integration.
Labor lawyers also identify a qualitative political shift as having occurred. Neo-
liberal hegemony followed swiftly on the demise of socialist states, substituting for
Keynesian reliance on state ownership, planning and intervention as strategies to
achieve political goals, including with respect to regulation of labor markets,29
renewed confidence in the legitimacy, as well as efficiency, of competitive markets
as a distributive mechanism.30 Critical labor lawyers sometimes supplement this
general account by pinpointing the operation of interest-driven political dynamics
of specific historical moments.31 State sovereignty over labor regulation, it is said in
28 Id., 5; see, generally, MANUEL CASTELLS, THE INFORMATION AGE: THE RISE OF THE NETWORK SOCIETY VOL.
I (2000).
29 See, for example, Csilla Kollonay Lehoczky, Ways and Effects of Deconstructing Protection in the Post-
socialist New Member States - Based on Hungarian Experience, in BOUNDARIES AND FRONTIERS OF LABOR LAW.
GOALS AND MEANS IN THE REGULATION OF WORK, 221 (Guy Davidov & Brian Langille eds., 2006).
D’Antona (supra note 25, 34-5, 38) highlights, in this context, the marginalization of worker interests and
labor law within national constitutions.
30 See, for example, Harry Arthurs, “Private Ordering and Workers’ Rights in the Global Economy:
Corporate Codes of Conduct as a Regime of Labor Market Regulation”, in LABOR LAW IN AN ERA OF
GLOBALIZATION. TRANSFORMATIVE PRACTICES AND POSSIBILITIES, 471 (Joanne Conaghan, Richard Michael
Fischl & Karl Klare eds., 2002). See, also, Habermas, supra note 19, 11-12.
31 For example, highlighting the 1980s “global debt crisis” of the 1980s as the platform for definitive
insertion into the institutional frameworks of developing countries of neo-liberal trade and economic
policies, via IFI-imposed structural adjustment packages, including labor market flexibility agenda;

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this context, was subjected to policy steering by international organizations, under
which “social controls” on foreign investment and state support for domestic
production were eliminated,32 restraining “Third World” development and re-
instating dependence on industrialized nations.33
II. Transformations affecting Production, Employment and “the Worker”
Labor law envisages various connections between macro-level economic and
political transformations and the alteration of the character of industrial production,
work, the employment relationship, and the legal and social identities of the
“worker”. Starting with production, in Europe and elsewhere in the developed
world, diminishing labor demand, due to mechanization, has been followed (often
via long transitional periods of high unemployment) by the growth of employment
of different kinds, for instance, in light manufacturing and services. Increasing ease
of transportation of production factors and dematerialization marginalized the need
for continuous plant operation by a local workforce. Facilitated by the
liberalizations mentioned above, this has meant that vertically integrated
production systems contained by national boundaries have yielded to global supply
chains - production networks held together by non-ownership legal relations,
principally contract, but also, for example, licensing and franchising agreements.
Concerning employment, one effect of such changes has been to normalize short-
term relationships between employers and employees, removing the need and
incentive for undertaking long-range investment in training and wellbeing of
workforces, and in relationships with their representatives. Sub-contracting
fragments responsibility, and decreases transparency for employers, employees and
third parties. It also creates novel spaces for informal working in transnational
production which, in contrast with national production in many developing
countries, was previously largely formalized.
secondly, via trade-related treaties concluded with developed countries. Rittich highlights labor rights
and labor market flexibility as “distinct normative visions with respect to the structure and operation of
labo[u]r markets and the location of authority and control in the workplace…” : Kerry Rittich, Core Labor
Rights and Labor Market Flexibility: Two Paths Entwined?, in LABOR LAW BEYOND BORDERS: ADR AND THE
INTERNATIONALIZATION OF LABOR DISPUTE SETTLEMENT, 161 (The International Bureau of the Permanent
Court of Arbitration, 2003).
32 See, for example Philip Alston, Labor Rights Provisions in US Trade Law: ‘Aggressive Unilateralism’?, 15
HUMAN RIGHTS QUARTERLY 1 (1993), for early critique of the NAFTA regime’s impact on national labor
rights.
33 See, for example, David Montgomery, Labor Rights and Human Rights. A Historical Perspective, in HUMAN
RIGHTS, LABOR RIGHTS, AND INTERNATIONAL TRADE, 15 (Lance A. Compa & Stephen F. Diamond eds.,
1996); see, also, Rittich, supra note 31.

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With respect to work, one effect has been intensification,34 for instance, proceeding
via revision of job descriptions and categories in the context of weakening union
representation. Another dimension, flagged by labor lawyers as transformative, but
infrequently recognized in general social scientific accounts of globalization, is
“feminization” - the “gendered transformation of work”.35 Feminization has been
made possible, in part, by relative de-materialization, diminishing the need for
heavy manual labor, but also by enhanced personal mobility and communications,
and the social and cultural impacts of political movements for women’s equality
that have followed autonomous trajectories.
Feminization does not correspond merely to the numerical rise of women in the
global workforce. Rather, it stands for what has accompanied this, that is, the
pronounced growth of “contingent, non-standard or atypical work”, “part-time,
casual, temporary, own account or self-employed, home work, and contract work”,
sometimes given the label “precarious” work,36 and the normalization of these forms
of work, and the terms of their performance, with respect to the workforce as a
whole.37 Increasingly, these substitute the “standard employment” norm, around
which labor and welfare law, and the ends and modalities of collective action, were
historically constituted: the (typically white) male head of household, engaged
continuously from post-education to standard retirement age, on the basis of a
permanent, full-time contract, performing site-based work, according to a regular
schedule, and earning, and socially understood as entitled to, a “breadwinner” or
“family” wage.38
34 See, generally, RICHARD SENNETT, THE CORROSION OF CHARACTER: THE PERSONAL CONSEQUENCES OF
WORK IN THE NEW CAPITALISM (1998).
35 See Kerry Rittich, Feminization and Contingency: Regulating the Stakes of Work for Women, in LABOR LAW IN
AN ERA OF GLOBALIZATION. TRANSFORMATIVE PRACTICES AND POSSIBILITIES, 117 (Joanne Conaghan,
Richard Michael Fischl & Karl Klare eds., 2002).
36 See Judy Fudge and Rosemary Owens, Precarious Work, Women, and the New Economy: The Challenge to
Legal Norms, in PRECARIOUS WORK, WOMEN, AND THE NEW ECONOMY: THE CHALLENGE TO LEGAL NORMS,
3 (Judy Fudge & Rosemary Owens eds., 2006).
37 See Guy Standing, Global Feminization Through Flexible Labor, 17 WORLD DEVELOPMENT 1077 (1989), and
Guy Standing, Global Feminization through Flexible Labor: A Theme Revisited, 27 WORLD DEVELOPMENT 583
(1999). According to recent studies, migrant workers number 80-100 million: about half of these workers
are women, amongst whom domestic work is the most common occupation: ILO, About MIGRANT
http://www.ilo.org/public/english/protection/migrant/about/index.htm, Preventing Discrimination,
Exploitation and Abuse of Women Migrant Workers: An Information Guide-Booklet 1: Why the Focus on Women
International Migrant Workers, 5 (2003).
38 See Rittich, supra note 35.

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A further consequence of feminization, then, is the foregrounding of the instability,
rising with global market integration as defined above, of the boundaries
“public”/“private”, “market”/“home–family-social”. These have been identified by
feminist labor theorists as the principal sites on which the tensions between the
functions of individuals with regard to society’s productive and reproductive
capacities are played out. 39 Always contingent and infused by ideology, the
distinction between market- and non-market work is blurred as a combination of
the two becomes the norm for individual workers, also exposing the “inter-
constitution” of structures of production and reproduction.40 Its corrosion proceeds
across multiple dimensions: geographical, in the vanishing separation between
work/non-work space (for example, as in home-working); temporal, in the fusion
of work/non-work time (for example, self-employment); financial, in the meshing
of workers’ production and living costs (for example, child care expenditure). To an
extent this as a side effect problematizes the corporation which increasingly serves a
vehicle for own-account working. In aggregate, these developments mean that
women workers collectively are subsidizing both the costs and risks of production,
while, as individuals, they suffer cuts in real income and the dilution of the benefits
of paid work.
Thus revealed is labor law’s founding ideal of the male unencumbered worker. Also
uncovered is the constitution/production of the legal and policy categories of labor,
work and employment by wider frameworks of legal regulation, their still-gendered
distributions of legal rights, property and goods, both public and “private”, as well
as by the national, international and supranational constitutions that frame them.
Family law, taxation, social welfare law, health care policy - all impact on the ability
to perform paid and unpaid work, and to access the attached payments.
Feminization then presents fresh opportunities to consider the ways “employment”
on the one hand, and work, on the other, are “formed by and articulated with other
[social] institutions such as the family or household”. It should also force
recognition, at last, of the lack of any necessary definitional relationship between
them and their non-coextensivity in practice.41
39 See Fudge and Owens, supra note 36.
40 See Rittich, supra note 35, 128. Appreciation of the interdependence of market and non-market activities,
risks and rewards is mirrored by international human rights law discourses’ notions of “interdependence
and indivisibility” of human rights across the categories of civil and political, social and economic
human rights (see, for example, Beijing Declaration of the UN’s Fourth World Conference on Women, UN
Doc. A/CONF.177/20 Annex I (1995)).
41 Rittich, supra note 35, 123.

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III. Collective Labor Institutions – Trade Unions
Despite diversity in national arrangements, historically and persisting to the present
time, 42 trade unions’ trajectories over the last two decades display certain
similarities across jurisdictions. Union density and union membership have
declined “precipitously” across developed and developing economies where they
were formerly strong.43 How does labor law explain these changes? A typical
answer links the demise of Keynesian labor policies of “counter-cyclical job
creation, collective bargaining, protective labor legislation, and equality-enhancing
strategies”44 to the dismantling of the “four pillars” on which they formerly rested -
nation state, large factories, full-time employment, and generalized union
representation.45
Some authors points to supplementary factors. A significant strand in the literature
(and one whose discussion goes beyond the scope of this paper) asserts the role of
regulatory competition in creating downward pressure on national regimes of labor
regulation.46 Secondly, feminist labor analysis points to trade unions’ hesitance in
responding to changing work patterns and recognizing non-standard workers, as a
result of which women and racial minorities were historically denied equal
employment rights.47 Against this background, the normalization of atypical work
42 For example, in socialist states, trade unions were often integrated into totalitarian systems of rule; as a
result, they were generally unable to exert strong influence over post-Communist labor constitutions. In
some post-colonial states, by contrast, trade unions functioned as organs of civil resistance to military
rule; elsewhere, as quasi-official “workers” organizations”, their collusion won industry-specific
protectionist intervention within directed economies. In some states, such as China, free trade unions do
not yet exist.
43 See, for example, Richard Michael Fischl, Organizing Low-Wage Workers in the US: Some Lessons from the
Miami Janitors Campaign, mimeo; and Paul Benjamin, Beyond the Boundaries: Prospects for Expanding Labor
Market Regulation, in BOUNDARIES AND FRONTIERS OF LABOR LAW. GOALS AND MEANS IN THE REGULATION
OF WORK, 181 (Davidov & Langille eds., 2006), with regard to South Africa.
44 See Arthurs, supra note 30.
45 See D’Antona, supra note 25.
46 See, now classically, Wolfgang Streeck, Industrial citizenship under regime competition: the case of the
European works councils, 4 JOURNAL OF EUROPEAN PUBLIC POLICY, 643 (1997); and, also, Catherine Barnard,
Social Dumping and the Race to the Bottom: Some Lessons for the European Union from Delaware, 25 EUROPEAN
LAW REVIEW 57 (2000), and Simon Deakin, Legal Diversity and Regulatory Competition: Which Model for
Europe?, 12 EUROPEAN LAW JOURNAL 440 (2006).
47 See Fischl, supra note 43, 3. Practices such as giving priority to full-time workers for promotion and job
security tend disadvantage of female workers.

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can be seen to have had a dual relationship with union decline. In the first instance,
precarious work emerges partly as a result of non-standard workers “definitional
exclusion” by collective organizations.48 Unprotected as they entered the labor
market, non-standard workers subsequently functioned, through no fault of their
own, to encourage the spread and embedding of atypical, less advantageous terms
and conditions of work.
Secondly, the incompatibility of full-time, long-term continuous commitment with
the demands of women’s unpaid work undoubtedly encouraged the growth of
atypical employment to meet women’s needs, albeit unsatisfactorily. Individualized
and de-sited, and hence, “invisible”, precarious work poses obstacles to the
coalescence of solidarity and worker organization. In combination with their
political and social marginalization – partly prior, but also an effect of low
employment status and lack of employment-related benefits (for example, income,
healthcare, pension) in the past restricted to unionized sectors – this has had the
outcome that a substantial segment of the total working population are now
relatively disempowered by the standards of earlier decades.49 Whereas national
and international politics and law-making at one time often sought explicitly to
articulate employees’ (and trade unions’) interests, now this scarcely happens.50
Subsequently, unions have sought to embrace atypical workers (such as the
notionally “self-employed”) even where this threatens standard employment terms
and conflicts with the interests of existing members.51 Some unions, for instance,
now select organizing goals and strategies ad hoc according to target groups and the
nature of the work performed. 52 Identity-based organizing 53 takes a multi-
48 See Rittich, supra note 31, 118.
49 See Maria Ontiveros, A New Course for Labor Unions: Identity-Based Organizing as a Response to
Globalization, in LABOR LAW IN AN ERA OF GLOBALIZATION. TRANSFORMATIVE PRACTICES AND
POSSIBILITIES, 417 (Joanne Conaghan, Richard Michael Fischl & Karl Klare eds., 2002), observes, in
addition to sex discrimination, female workers’ ongoing subordination via family roles and expectations
strongly influenced by patriarchal social structures. On the other hand, Fischl (supra note 43) describes
migrant workers as geographically and temporally dispersed, racially and culturally heterogeneous,
economically disempowered and precarious, due to irregular immigration status.
50 See Simon Deakin, The Many Futures of the Contract of Employment, in LABOR LAW IN AN ERA OF
GLOBALIZATION. TRANSFORMATIVE PRACTICES AND POSSIBILITIES, 177, 194 (Joanne Conaghan, Richard
Michael Fischl & Karl Klare eds., 2002) frames this as a shift in the role of trade unions, from that of co-
regulator, to monitor and enforcer, ex post facto, of labor-related legal norms.
51 For example, the US Service Employees International Union was established in the 1990s as a break-
away from AFL-CIO, over the latter’s “perceived failure to devote sufficient resources and ingenuity to
organizing new workers”: Fischl, supra note 43, 1.
52 See Ontiveros, supra note 49. Fischl, supra note 43, illustrates with reference to site security jobs, which
cannot be outsourced, and are already sub-contracted.

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dimensional view of workers: in addition to the economic interests that were
historically the explicit basis of solidarity, it recognizes the inter-linked individual,
social and cultural identities of workers, and the obstacles, as well as possible
routes, to empowerment, now increasingly broadly understood, that may be
attached to them. The specificities of the formal legal status of workers, within
complex corporate and contractual relationships, and more widely (for instance,
with regard to immigration) may also be taken into account. Moreover, this wider
canvas for the articulation of claims is linked in some unions’ activity to the
substitution of labor procedures prescribed by national law by recourse to non-legal
forms of “enforcement” involving new actors (NGOs, media, etc.), based on
employers” voluntary commitments, and which avoid reliance on state coercion
which, in any case, is less reliable than before.54 In some instances (though this is
not yet a general trend), organizing is expressly based upon “dignity and justice”,55
and directed to objectives framed in terms of citizenship, political participation and
empowerment.56 Such “grass roots” developments have been paralleled by pressure
on unions to extend full effective access to sectors of the workforce that were
previously excluded, stemming from activism drawing authority from international
human rights standards.57
53 Ontiveros, supra note 49, 417 defines identity-based organizing as “a way of organizing the whole
identity of a human being, not just his or her workplace identity”, with reference to personal identity
factors including “race, gender, ethnicity, national origin, citizenship status, community, sexual
orientation, and religion”, as well as class identity factors, these being “job, social class, career, income
and wealth”.
54 Fischl, supra note 43, 5, even refers to a “law avoidance strategy” by unions in the US, for example,
substituting organized ballots with direct action, including “corporate campaigns” seeking to provoke
public or contractor pressure on targeted companies who may not be the legal employer, but who may
be more visible, locally or nationally, and sensitive to publicity. See Ontiveros, supra note 49, 418, relates
avoidance of “traditional administrative process used by unions in the USA”, on grounds of
ineffectiveness. Non-legal action is highlighted as especially important where workers, despite large
numbers and longevity of employment, are irregular. For countless further examples of extra-legal
organization, see Business and Human Rights Resource Centre (http://www.business-
humanrights.org/Home).
55 Reflecting “specific affronts to human dignity encountered by immigrant workers, as immigrants and
workers”: See Ontiveros, supra note 49, 418, with reference to the Los Angeles Justice for Janitors
campaign undertaken by the Service Employees International Union (SEIU).
56 Ontiveros, supra note 49, 421, illustrates with reference to Teamsters Local 890’s Citizenship Project in
California, addressed to the Latino community (http://www.newcitizen.org). This contrasts with past
constructions of “countervailing workers’ power” which focused on negotiation within the frame of the
long-term contract of employment to the extent that “goals of job enrichment and self-realization”
during work performance were often overlooked: Ireland, supra note 22, 198.
57 For example, the campaign for an ILO Convention relating to the rights of domestic workers, see, further,
http://communicatinglaborrights.wordpress.com/2008/03/22/domestic-workers-step-towards-an-ilo-
international-convention/.

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What implications for labor law do labor lawyers draw from such developments?
Evidence of unions’ progressive adaptation to evolving contexts and worker
profiles through systemic internal changes can certainly be viewed as
encouraging.58 Some theorists, however, see in organized labor’s relative decline the
de-centering of the category of labor and the demise of the “binary capital-labor
frame”.59 “Pluralistic” labor relations – a reference to the newly diverse social bases
and modalities of worker organization – are, on the one hand, in line with the
unmasking of “worker” as a contingent and partial, as opposed to the totalizing
identity economic determinism construed it to be; on the other hand, the criss-
crossing of received “public-private” legal and policy boundaries by novel worker
concerns, illustrated above, is suggested to indicate “de-stabilization” of the social
meaning of work.
IV. The Contract of Employment
Contrasting law and economics’ depiction of the employer-employee relation as a
bargain struck between “private” and freely-contracting individuals in abstraction
from both social conditions and individual characteristics, labor lawyers frequently
adopt an historicized account of the origins of the contract of employment. This
approach highlights the co-originality of employee status with industrialization,
over the course of which it gradually superseded other legal arrangements for
performance and payment of work, such as master-servant and the contract for
hire, and constituted the category (if not the class) of wage-dependent labor. The
arrival, in parallel, of workplace and social welfare legislation constituted the
enterprise, as employer, locus of fiscal revenue collection, bearer of health and safety
duties, and, also, with the introduction of compensation schemes (for example, for
interruption of earnings through sickness or injury) as a vehicle for redistribution of
the risks of industrial production.60 In like fashion, it has been suggested, collective
representation, the articulation of job categories, statutory employment protection
rights, and the emergence of larger firms, were subsequently mutually
58 Ontiveros, supra note 49, 420-421, cites AFL-CIO’s 2000 reversal of its “traditional nativist approach to
immigration”.
59 Klare, supra note 26, 13, suggests the assumption of the employment relationship as the “essential
substrate of social organization” is no longer valid.
60 According to Deakin, with reference to regulation, private and social insurance, “…the enterprise
became the main conduit for the wider process of risk-sharing at which the laws were aimed”: supra note
50, 184.

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conditioning.61
On other (though reconcilable and partly overlapping) readings offered by
institutionalism (economic and/or sociological), the contract of employment, in its
traditional form, is explained on the basis that it rewarded employees with security
in return for subordination - to state authority, legislation and bureaucracies
(industrialization coinciding with the consolidation of national government and
identities in many countries) and employers. To the latter flowed benefits, first, in
the form of decreased information, search and transaction costs, and second,
flexibility, in the form of the “managerial prerogative”, the exercise of which gave
content to an otherwise largely indeterminate agreement. In return, employees were
rewarded with resources which facilitated family subsistence and social inclusion to
a basic level.62 Importantly, the state was implicated in this arrangement in a
number of ways: exploiting it to collectivize risks via social insurance,63 it also made
the assumption of long-range employment relations between parties of stable
identity the platform for a range of social policy interventions.
As with the sovereign nation state and democracy,64 the gradual embedding of the
employment relation in this institutional framework led to their habitual
identification. Now, however, welfare and other social systems, and employment,
are increasingly prised apart. Short-termism, and geographical dispersal of those
engaged by single enterprises, even within individual production lines, and via
cross-border service provision, are significant alterations to the context of the
employment contract. National borders no longer contain contracting parties or
tasks performed, nor do they define applicable regulatory regimes (consider special
fiscal arrangements applicable to Export Processing Zones and the increasing role of
regional authorities). The “employer” is no longer a local, dependable locus of
material or financial resources or administrative infrastructure, nor is its legal
identity and longevity assured.
61 Id., 182-4, citing Ronald Coase, The Nature of the Firm 4 ECONOMICA (NS) 386 (1951); Herbert Simon, A
Formal Theory of the Employment Relation, 19 ECONOMETRICA 293 (1985), and OLIVER WILLIAMSON, THE
ECONOMIC INSTITUTIONS OF CAPITALISM (1985), Chapter 9.
62 Klare, supra note 26, 12-13, suggests that according to the ideal of typical employment, workers “leave
strategic decision-making and risk to the employer in return for a modicum of security, fair-play and
(theoretically) a family wage”; employees, during employment, “are and should be command-
followers”. Supiot refers to the trading of “economic dependence” for “social protection”: Alain Supiot,
AU-DELA DE L’EMPLOI: TRANSFORMATIONS DU TRAVAIL ET L’AVENIR DU DROIT DU TRAVAIL EN EUROPE.
RAPPORT POUR LA COMMISSION EUROPÉENNE (1999), 10.
63 See Deakin, supra note 50, 178.
64 See Eriksen and Fossum, supra note 1. See, also, Michael Zürn, The State in the Post-National Constellation -
Societal Denationalization and Multi-Level Governance, Arena Working Papers WP 99/35 (1999), and Sassen,
supra note 11.

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Moreover, as production becomes a “flatter” affair,65 workers are called upon to be
more entrepreneurial, to collaborate with firms, instead of awaiting their
instruction, for example, and to predict future production trends and respond to
these proactively. Flexible labor market policies in practice often entail that it is
individuals, and not employers, who assume the costs and risks of acquiring new
skills and qualifications. Negotiation is complicated by the diminishing portion of
workers who are, in technical legal terms, “employees”; others’ interests, as
discussed above, are still only barely represented by trade unions.66 In the ultimate
result, for many workers, employment’s original promise and reward of long-term
security and supported career progression has been withdrawn.67
Accordingly, it has been concluded, the employment contract is now “less suitable
as a vehicle for sharing and redistributing risks among the working population”
than before.68 Nonetheless, this serves only to underline that the employment
relationship has been, and remains, an emergent socio-legal institution: a “complex
bundle of conventions and norms of varying degrees of formality…”; cumulative,
path-dependent, and contingent; and, critically, the product of a multitude of
interactions of “…economic organization, dispute resolution, and political
mobilization.”69 It “encodes” political solutions to social co-ordination problems, as
filtered by court and legislative processes.70 It captures a compromise between
market-making and market-correcting impulses for a given political space and time.
But it can only be accurately read and understood in conjunction with the national
constitutional and welfare arrangements that it presupposes and, vice versa, which
presuppose it. Within constitutional nation states, all have been part of the same
complex device for sharing the risks of social production and reproduction. The
legitimacy of private relations hinges upon the overall distributive outcomes
65 See THOMAS L. FRIEDMAN, THE WORLD IS FLAT (2005); Charles F. Sabel, Learning by Monitoring: The
Institutions of Economic Development, in T
HE HANDBOOK OF ECONOMIC SOCIOLOGY (Neil J. Smelser and
Richard Swedberg eds., 1994).
66 For example, with the growth of notional self-employment.
67 See Deakin, supra note 50, 178.
68 See Deakin, supra note 50, 179.
69 See Deakin, supra note 50, 185-6.
70 Deakin, supra note 50, 181, in this context, he refers to the classical employment contract as a “relational
contract”, in which market exchange is enmeshed by “political and social processes of the relation,
internal and external” (citing Ian R. MacNeil, The Many Futures of Contracts, 47 SOUTHERN CALIFORNIA
LAW REVIEW 691 (1974)).

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achieved by the wider constitutional systems of which they are part, and
democratic legitimacy depends on the protection provided for both public and
private autonomy, against both public and private coercion.
C. Labor rights under globalization : four reconstructions
Recognition of the employment relationship’s status as an emergent socio-legal
institution justifies the following four attempts by labor lawyers to reconstruct the
discipline - that is, having identified a central normative objective, to re-interpret its
scope and concrete applications, with the aim of securing its achievement in
changed external conditions.71
I. Responding to Global Competition: The “Symbiotic” Employment Contract
At least in the “OECD world”, 72 it was noted, the social legitimacy of the
employment contract formerly rested on the exchange of individual subordination
to managerial prerogative for material security and, secondly, on its minimum but
progressive terms, set legislatively, rewarding loyalty to national authorities and
acceptance of the market mechanism, and providing a bond between individuals
and the state, thus supporting the coalescence of national identity and citizenship.
When fewer workers enjoy security of employment, or rewards and resources as
favorable as those that self-employment paradigmatically presupposes; when social
security provision is restricted, even for nationals; and when migrant workers,
enjoying few, if any, of the benefits of citizenship, now represent a large proportion
of the global workforce, what can the legitimizing basis of the employment contract
be? This section considers a reconstruction of the employment contract, intended to
answer this dilemma.73
71 See Mayntz’s observation of the “hermeneutic and interpretive” approach of legal studies, in general,
with regard to globalization (Mayntz, supra note 5).
72 Michael Zürn’s expression: supra note 64.
73 See Hugh Collins, Is There a Third Way in Labor Law? in LABOR LAW IN AN ERA OF GLOBALIZATION.
TRANSFORMATIVE PRACTICES AND POSSIBILITIES, 449 (Joanne Conaghan, Richard Michael Fischl & Karl
Klare eds., 2002). Its immediate pretext is Third Way politics and its “reconfiguration” of employment
standards (see, for example, ANTHONY GIDDENS, THE THIRD WAY: THE RENEWAL OF SOCIAL DEMOCRACY
(1998). Since these are interpreted as a response to the re-contextualization of national economies and
politics within global economic integration it is, however, suggested as an account of potentially broader,
perhaps even general, application. Interestingly while Collins (id., 450) suggests these trends contradict
“aspects of accepted international norms as embodied in the Conventions of the ILO”, there would now
appear to be a degree of convergence between ILO and Third Way agenda: see, for example, ILO/Peter
Auer, In search of optimal labor market institutions, Economic and Labor Market Paper 2007/3 (2003),
concluding active labor market policies as “optimal labor market institutions” for the contemporary
economic setting for developed countries.

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In general, OECD states’ policies increasingly substitute concern for equality of
outcome with the goal of “real equality of opportunity”, that is, formal equality
supplemented by the “necessary resources in terms of education, training, skills and
other financial support, so that they [workers] can participate fully in the
opportunities afforded by a flourishing market economy”.74 Similarly, they have
adopted a revised (and by now orthodox) understanding of the regulatory role of
the state, as rudder, not rower: governments can modulate the operation of market
forces, but they take their place only on proof of failure. Thus, there is a tendency to
eschew redistribution in the workplace as a legislative goal, hence also concern with
labor rights, to the extent these are considered redistributive, and any special
commitment to trade unions (non-union entities, such as quality circles, and works
councils, being recognized as equivalents). Thirdly, given the prima facie legitimacy
of markets, individual labor rights’ justification is increasingly recast as functional,
in promoting efficiency.75 Against the background of economic integration, this
defines a new global function for labor law: to improve competitiveness of business
operations located within the jurisdiction (no point being taken on firms’
nationality) and to avoid social exclusion, by guaranteeing equal access to labor
markets, enhancing employability, and reconciling family and other social
responsibilities with labor market participation. Together, these strands displace
social democracy’s traditional conceptual framework, under which trade unions
and collective bargaining, statutory intervention, and individual rights 76 were
essential to achieving social equality.77
Concerning specific employment policies, in line with this general view,
“Partnership at Work”, a UK legislative initiative, is taken to be exemplary. For trade
union rights, this substituted information exchange, and a commitment to use
information “…co-operatively to improve the efficiency of the relations of
production”. Diverging further from historical labor norms, while communication
facilitated by information exchange may concern “details and objectives of
production”, and perhaps business strategy, it will not concern “the price of labor
except…as…part of productivity-enhancing agreements”. 78 Non-union entities,
mentioned above, are recognized for this purpose. Once more, competition
provides both practical rationale and normative justification: “countries that pay
74 Collins, supra note 73, 452-453.
75 Id., 451.
76 The suggestion is that flexibility discourages the “adoption of mandatory and inalienable rights”, which
might be inefficient, or obstruct steps to employer-worker co-operation.
77 Collins, supra note 73, 455.
78 Id., 457.

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high [sic] wages” must compete in terms of “quality, design, responsiveness to
changes in the market, and technological superiority”, as must companies
individually, this reflected in the spread of total quality management, just-in-time,
and human resources management, and a new emphasis in management (rhetoric)
on “partnership inside the firm”. Accordingly, the content of “partnerships” varies
in line with the competitive needs of firms, whose dynamism precludes statutory
specification of any single partnership model.79 As for the state, it meets labor
market access and flexibility objectives through supply-side measures, for example,
certifying work-related education, subsidies for low wages via tax credits, and
“family-friendly” labor market policies, such as equal treatment for part-time work
and promoting access to childcare.
This package is identified as the basis for a reconstruction of employment’s legal
form, with the “symbiotic” employment contract assuming the role of new
regulative ideal. 80 Under this concept, in place of the traditional asymmetric
exchange relationship noted at the outset, employers are to provide work and skills
in return for co-operation and innovation and – the critical difference - vice-versa,
the employee. Contrasting with the verticality of the old employment contract (a
result of the constitutive role of managerial prerogative), this is a horizontal vision
of employment, with potential to make work “more fulfilling and democratic” and
to balance work with other parts of life. But traditionally, labor law proceeded from
the presumption of the inevitability of a conflict of interest between employer and
employee. In partnership, by contrast, mutual trust appears to be foundational.
How is this circle to be squared?
The response is that trust is, indeed, foundational – and traditional coercive legal
intervention has never been able to compel it. Two alternatives are, on this basis,
advocated. First, procedural, reflexive, responsive regulatory approaches, whose
capacity to compensate unequal bargaining power between labor and capital is
asserted; 81 second, voluntary company action on basic and minimal workers’
79 See William E. Scheuerman, Democratic Experimentalism or Capitalist Synchronization? Critical Reflections on
Directly-Deliberative Polyarchy, 17 CANADIAN JOURNAL OF LAW AND JURISPRUDENCE 101 (2004).
80 Collins attributes to Schanze the “symbiotic contract” concept, said to contain the “seeds of a radically
new approach to labor law”: Erich Schanze, “Symbiotic Contracts: Exploring Long-Term Agency
Structures between Contract and Corporation”, in FRANCHISING AND THE LAW (Christian Joerges ed.,
1991).
81 “New Regulatory Method” seeks “…to provoke the parties themselves to re-engineer their own
economic and social relations through partnerships and contractual agreements”; and aims at
“…inducing employers to revise the internal rules of their organization” by describing “explicitly the
kinds of procedures required, though leaving the detail to employers to determine, and to provide
incentives to adopt these procedures”, for example, whistle-blower laws, European Works Council
Directive, EC Directive 94/45 of 22 September 1994, OJ 1994 L254, 64464 : Collins, supra note 73, 468.

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entitlements, which are claimed to yield “credible promises”.82
If these premises are accepted, Partnership at Work can be characterized not as “a
policy of abstention from legal intervention”,83 but as a more sophisticated route to
achieving “credible commitments to fairness at work”.84 Further regulatory devices
pursuant to both symbiotic contract and the two principles just mentioned (i.e.,
proceduralism and voluntarism) would include, for instance, allowing opt-out from
legislatively-specified schemes upon introduction of a company’s “own bespoke
system”;85 the approval of company rules by independent third parties to transform
codes of practice into certification standards; 86 tiered systems of opt-out or
modification of rights, according to their categorization in terms of the likely scope
for individual (as opposed to collective) employee bargaining to achieve optimal
outcomes;87 and finally, and claimed as ultimately necessary for the realization of
true partnerships, profit-sharing measures, such as employee share-ownership
schemes, and profit-related pay, to be encouraged, for example, through tax
incentives.
Favoring Collins’ reconstruction is the undoubted normative appeal of establishing
parity of the parties to the employment relationship as a new basis for labor law.
Likewise are, it might seem, the general legal theoretical arguments backing
procedural approaches and the compromised position of trade unions and national
autonomy over employment regulation with global economic integration. Yet do
not these last two factors entail that procedural regulation in the workplace will, in
82 Id., 463. Collins continues: “If the employer structures its procedures and rules that comprise the
organization around respect for fairness, the bureaucracy is likely to carry out these standing orders…
[R]eliance upon background legal rights enforceable in an employment tribunal is likely to produce little
sense of commitment towards the employer…In order to enhance the credibility of the employer’s
commitment, the task of legal regulation is not primarily to grant employees legal entitlements that may
be enforced by way of compensation in tribunals, but rather to re-engineer the internal rules of
organizations so that they present credible commitments towards fairness.”
83 Echoing and implicitly rejecting Kahn-Freund’s “collective laissez-faire”.
84 It is claimed to aim at inducing “voluntary arrangements for consultation and sharing of information”
(Collins, supra note 73, 461).
85 For example, UK Employment Relations Act 1999 incentivizes adoption of partnerships by establishing
the possibility of imposed union recognition and collective bargaining where employers decline to
introduce own arrangements for consultation and participation.
86 Collins, supra note 73, 465, suggests taking this approach to equal opportunities “…would do more than
any legal measures to achieve a change in the culture of management practices and a reduction in
discrimination”.
87 Some rights would be categorized as alienable by individuals, others only following conclusion of a
collective agreement or after a procedurally fair settlement; and others not at all, along lines shown by
the UK Working Time Regulations 1998.

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practice, amount to devolving near total discretion to company management over
the form and content of legal arrangements governing work, and rights incidental
to them – preventing the “symbiotic” dynamic in the employment relationship
assumed to legitimate the move from traditional routes of workers interest
definition and promotion, and prevent the risks associated with it from
eventuating? Various studies of EU labor regulation cast empirical light on this
question. However, staying on the normative plane, a second reconstruction
superficially appears to indicate that competitive market dynamics and inequality
of workplace bargaining power need not be definitive.
II. Responding to De-Unionization: Independently Monitored Self-regulation
Estlund’s (2005) starting point is the US’ progression, over the twentieth century,
from the “New Deal model” of industrial relations, reliant on workers’ self-
organization and voluntary collective bargaining “over most terms and conditions
of employment…”, 88 through a “regulatory model” of statutorily-determined
minimum standards enforced by administrative agencies,89 and a “rights model” of
judicially enforceable individual workplace rights, 90 concluding with a
contemporary gravitation towards “employer ‘self-regulation’”91 and, in parallel,
88 The New Deal model’s principal elements are identified as: i) the 1935 National Labor Relations Act
which, in the perspective of industrial democracy, is also described as a “…‘constitution’ of the private
sector workplace – a framework for self-governance supported by a set of individual and group rights,
and an administrative enforcement scheme”, and based on a vision of workers as citizens and the
workplace as a site of self-determination; ii) the 1938 Fair Labor Standards Act, establishing enforcement
duties on the Federal Department of Labor, as well as universal minimum statutory protections (for
example, minimum wage and overtime premia). Social security legislation setting minimum provisions
on retirement security, and subsequent health and safety legislation, by contrast, are described as
conferring rights without participation, rendering employees “passive beneficiaries of the government’s
protection”: Cynthia Estlund, Rebuilding the law of the workplace in an era of self-regulation, 105 COLUMBIA
LAW REVIEW 319, 326 (2005).
89 Here the Occupational Health and Safety Act 1970 (“OSHA”), targeted by Bardach and Kagan’s epochal
critique of “regulatory unreasonableness” is taken as paradigmatic: EUGENE BARDACH & ROBERT A.
KAGAN, GOING BY THE BOOK: THE PROBLEM OF REGULATORY UNREASONABLENESS (1982).
90 Referring principally to the Civil Rights Act 1964, Pub L. No.88-352, § 703, 78 Stat. 241, 255 (codified as
amended at 42 USC § 2000e-2 (2000).
91 Estlund, supra note 88, 319, supporting this claim with reference to the Federal Sentencing Guidelines
which, for example, allow mitigation for firms “[i]f the offense occurred despite an effective program to
prevent and detect violations of the law, provided firm promptly reported violations once occurred (US
Sentencing Guidelines Manual § 8C2.5 (f) (2003), footnote 96; and also OSHA’s 1982 Voluntary Protection
Program, under which employers showing commitment and internal organizational capacity to comply
with health and safety standards and improve safety records, and employee involvement in safety
programs, could be relieved of regular inspections and “put onto a more conciliatory enforcement track”
(Estlund supra note 88, 345). Statutorily incentivized self-regulation of this kind is distinguishable from

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the “privatization of enforcement”.92 Self-regulation, Estlund defines as “…internal
systems for enforcement of rights and regulatory standards – and of legal
inducements to self-regulation in the form of reduced public oversight or
sanctions”. This evolutionary “mega-trend” is explained with reference to interest-
driven employer resistance,93 but also on the basis of “…challenges to the efficacy of
regulation and litigation of workplace rights and standards…from scholars and
employee advocates…”. It is accepted, then, that there are valid normative grounds
for employer self-regulation, in the form of (moderate) regulation theory’s critique
of “command and control”.
Yet, noting the US’ recent “drastic decline in unionization”, at the same time it is
acknowledged that self-regulation in the labor domain poses a dilemma: despite
potential functional gains, the goals it sets may represent a narrowed agenda,
perhaps even tending to de-regulation. How, then, to proceed? Estlund’s
“monitored self-regulation” (“MSR”) proposal draws extensively on two earlier
approaches: Ayers and Braithwaite’s “responsive regulation”94 (“RR”), and the
Ratcheting Labor Standards model (“RLS”).95
From RR is taken, firstly, the idea of the regulatory pyramid which “situates self-
regulation in a broader scheme, in which traditional inspections, enforcement and
punitive sanctions continue to operate for the low road or less capable actors at the
bottom of the labor market”:96 self-regulation, in other words, in the shadow of law.
the orientation, for example, of the second Bush administration, to mere voluntary compliance with
guidelines.
92 Illustrating this with reference to private civil rights litigation (id., 334); diversity programs, internal
dispute resolution, and mandatory arbitration clauses (338). “Non-union grievance procedures”, Estlund
further notes, “…vary in their complexity from simple open-door policies to multi-step grievance
procedures involving peer review, mediation and arbitration”, 335. Private labor regulation can be
judicially enforced, for example, via defenses of “reasonable care” and where an employee failed to use
“preventive or corrective opportunities provided by the employer”, (Burlington Industries and Ellerth 524
US 742 (1998) and Farragher v. City of Boca Raton 524 US 775 (1998). Hepple describes similar phenomena
in the UK setting (Bob Hepple, Enforcement: the law and politics of cooperation and compliance, in SOCIAL AND
LABOR RIGHTS IN A GLOBAL CONTEXT. INTERNATIONAL AND COMPARATIVE PERSPECTIVES, 238 (Bob Hepple
ed., 2002).
93 Notably, in Estlund’s analysis, a phenomenon still defined on the national plane.
94 See IAN AYRES AND JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION
DEBATE (1992).
95 See Charles Sabel, Dara O’Rourke & Archon Fung, Ratcheting Labor Standards: Regulation for Continuous
Improvement in the Global Workplace, Columbia Law School, The Center for Law and Economic Studies
Working Paper No. 185, Public Law & Legal Theory Research Paper Group, Paper No. 21, May 2, 2000.
96 See Estlund, supra note 88, 359.

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Estlund secondly appropriates from RR the principle of tripartism, précised as
based upon the insight that workers’ participation in company-level compliance
activity “…can introduce flexibility and responsiveness into the regulatory regime,
and can reduce the costs and contentiousness associated with litigation, while
promoting the internalization of public law norms into the workplace itself”.97
However, RR, Estlund suggests, demands levels of union involvement that are
unlikely to be seen again soon in the US. This leads her to RLS, which re-allocates
the policing of labor standards within global production systems from trade unions
and national regulatory authorities to market forces, driven by ethical consumer
preferences, in turn reflecting information supplied by NGOs and multi-stakeholder
initiatives on companies’ respective social performance, under codes of conduct and
the like.
Under the influence of this approach, MSR gives “independent workplace
monitors” – non-trade union, but nonetheless “worker-oriented” bodies98 - the role
of enforcing company-level self-regulation. They are to act as “watchdogs” and help
“leverage limited public enforcement resources” with regard to corporate social
responsibility norms. Eschewing any role for trade unions and state regulation, as
RLS does, is, however, seen as expecting too much of companies and consumers.99
Because they remain in the “…best position to monitor employer compliance with
the labor and employment laws”, employees retain a supporting role in MSR, as
whistleblowers and monitor-informants; likewise, targeted public enforcement
action100 and private statutory rights litigation. Instances of non-union workplace
monitoring enhancing employers’ conformity with legal obligations on pay and
conditions are cited in support.101
97 Id., 323.
98 Idiosyncratic US statutory prohibitions of “employer unions” are suggested as providing an additional
reason in favor of this element of MSR: NLRA prohibits most intermediate options between individual
bargaining and full union representation, and further “…limits the range of potential experimentation
with alternative forms of employee representation within a tripartite scheme…”, id., 365.
99 With regard to the former, Estlund observes, “simply ignoring the law is an especially tempting strategy
for marginal producers at the bottom of the production chain, who have little fixed capital or stake in
their reputation…and who often rely heavily on undocumented immigrant workers who are too fearful
or desperate to complain,” id., 330, 370.
100 The Fair Labor Standards Act’s “joint employer” and hot goods provisions are highlighted as the kind of
“hard” inducements capable of convincing employers to “take the [regulatory] high road”.
101 Giving as examples: i) the New York State Greengrocers” Code of Conduct, addressing issues including:
labor and employment laws including relating to minimum wage and working hours, payroll records,
training, and employee information; appointment of employee spokespersons; and regular inspections
by monitors, who are appointed by the New York City Attorney General. Monitors report on violations
under the Code to the Attorney General’s office and a tripartite Code of Conduct Committee, which

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The net result, it is claimed, is MSR’s hybrid model, which uses conventional
“hard” enforcement (i.e., administrative action and private litigation) to induce
companies to participate in “monitored, quasi-tripartite self-regulation”. Effective
self-regulation, it is claimed, would rest on an “…explicit code of conduct
encompassing at least employers’ substantive legal obligations and employees’
rights…to communicate with each other and with monitors and regulators
regarding code compliance…[which] would be the responsibility of specified
managerial officials and monitored by independent outside monitors accountable in
part to workers”.102
Already made clear by this summary, however, is MSR’s assumption of two
conditions whose problematisation by economic globalization has been the starting
point of labor lawyers’ diagnosis of a need for alternative frameworks, as described
in Section B above. First, national legislative autonomy in the field of labor
regulation. MSR presumes “…the threat of potent sanctions against the worst
lawbreakers”, and statutorily grounded rights of private action.103 Second, labor’s
bargaining power and organization qua labor: tripartism cannot function, whatever
form it takes, under systemic power imbalance. 104 Estlund recognizes both
assumptions.105 But possible underlying reasons for the seeming disappearance of
certifies new signatories and marshals disputes. Subscribing to the Code can earn partial amnesty for
past statutory breaches. ii) the Maintenance Cooperation Trust Fund, a “non-profit watchdog
organization”, established by the Service Employees International Union and unionized employers in the
janitorial services sector, that was established to monitor compliance with statutory obligations and
promote enforcement via private lawsuits, state and federal regulatory action (Estlund supra note 88,
353).
102 Estlund suggests that provisions regarding certification and selection of monitors, approved inspection
protocols and conflict of interest prohibitions could follow along the lines set by the Sarbanes-Oxley Act.
103 See Estlund, supra note 88, 379.
104 “Where there is no power base and no information base for the weaker party, tripartism will not
work…” Estlund, supra note 88, 358, quoting Ayres and Braithwaite, supra note 94. Further revealing
confusion on this point, Estlund later states that as a consequence of the problem of “chronic [regulatory]
under-enforcement” state regulators must “…come up with strategies to secure compliance that do not
depend on intensive continuing oversight…” and so “will need to draw on non-governmental regulatory
resources”, the latter which she interprets as opening the way for her model’s independent monitoring
arrangements. However, chronic under-enforcement is endogenous to Ayres and Braithwaite’s RR
model which, by contrast, demanded that any tripartite agreement address not just substantive issues
but “…adherence to the institutional requisites of effective self-regulation...”, including granting freedom
of association to workers.
105 “Without a greater coercive threat, it will be difficult to induce most employers to take meaningful steps
toward effective self-regulation, and perhaps least of all toward employee representation,”: Estlund,
supra note 88, 365. She also states that a move towards self-regulation must be “…part of a regulatory
scheme in which serious sanctions also play a role”, id., 403.

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the first in the US, and further afield, are not investigated. Concerning the second,
the hope is expressed that external monitoring may be “…a step toward the
liberation of employee voice more generally”.106 But the main examples of MSR
provided in evidence of the approach’s viability were, in fact, triggered either by
state authorities or by established trade unions. Moreover, their major concern has
been to improve employer compliance with existing minimum protections set by
state or federal law.
In her defense, Estlund does take care to note the shortage, up to the present time,
of empirical evidence concerning the impacts of MSR-style projects. And the
modesty of MSR’s underlying vision,107 anathema to the social democratic tradition,
might be thought to have pragmatism in its favor, for workers outside that “golden
circle” – migrant, undocumented, and non-unionized labor whose rising numbers,
as noted earlier, are steadily forcing a re-definition of ”typical” employment. MSR,
then, is at least important in highlighting the heterogeneity that global regulation in
the labor domain must accommodate.
But the starting point of this section was the question of whether non-trade union
supported labor self-regulation can shore up Collins’ “horizontal” employment
contract, to prevent its collapse into a form of “partnership” drained of substantive
content in terms of employee rights and protections against subordination?108 The
claimed effectiveness of MSR has been shown to depend on either: a) the initiative
and engagement of state authorities and trade unions; or b) a radically attenuated
vision of labor rights. Consequently, the aspiration of horizontal employment
relationship remains as much at risk as before. Can anything be done, then, to
restrain the effects - for workers - of the underlying trends leading to de-
unionization and/or the weakening autonomy of states with regard to social and
labor standards? The two remaining reconstructions converge on a suggested
solution.
III. Reconstructing Labor Law via Corporate Law109
106 See Estlund, supra note 88, 374.
107 Underlined subsequently with the suggestion that, “Part of what the monitors must monitor is the
workers’ freedom, individually and collectively, to speak for themselves, both during and in between
visits that will necessarily be occasional”.
108 Estlund is not insensible to this risk: “Employment law, both its regulatory and its rights dimensions, is
in many ways a poor substitute for the system of self-governance envisioned by the labor laws… and
collective representation key to rights and regulations enforcement.”
109 For a reconstructive approach to corporate law, but from the perspective of human rights, rather than
labor law, see JANET DINE, COMPANIES, INTERNATIONAL TRADE AND HUMAN RIGHTS (2005).

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A widening gap between the legal concept of the corporation and the economic and
social functions that provided its original legitimation is highlighted by certain
labor lawyers. Historically, the limited liability company promoted enterprise by
pooling resources and sharing risk for relatively small numbers of direct investors,
and the rights and duties of shareholders reflected their typically “hands-on”
engagement in company operations, through which, it may be said, they exercised
genuine, rather than merely formal, co-ownership.
Yet, over the last hundred years, the management role of shareholders has
diminished and their connections to companies has become steadily more distant.
In parallel, directors’ and managerial powers have expanded and a separate
corporate personality individuated. Company law, particularly its Anglo-Saxon
forms, has become primarily concerned with “financial claims on the assets and
income streams of the firm”; no longer is it “directly interested in the relations of
production, and employees feature either as marginal subjects…or in so far as they
happen to be creditors or shareholders.”110 While the legal concept of the enterprise,
where it applies, still defines a risk management function, this is in tension with
company law’s explicit content and aims. Individual enterprises are frequently
fragmented into “multi-corporate” form, whereas there is still no “generally
accepted legal concept of the corporate group adequately expressing this complex
social and economic ‘reality’”.111
Labor law, in contrast, remains intrinsically concerned with the relations of
production inside enterprises; to this end, for instance, conferring as separate legal
identities employer, undertaking, and establishment. During the twentieth century,
moreover, labor law in some jurisdictions articulated ideals of “worker
participation” and industrial democracy, and concern with power and control. Its
more radical forms put on the agenda, vis à vis corporate law, “relaxation of the goal
of profit maximization”, “diminution of shareholder rights” and a more general “re-
110 See Simon Deakin, Enterprise-Risk: The Juridical Nature of the Firm Revisited 32 INDUSTRIAL LAW JOURNAL
97, 98 (2003). See, also, Ireland (supra note 21), coming from a more or less Marxist position, shares the
view that shareholders (“passive rentiers”) are “severed from the firm’s productive purpose”, and further
asserts that shareholders benefit from “unpaid labor”, i.e., in the form of residual profits, so that there can
be no moral case for giving them ownership rights. This is said to explain the relatively recent emergence
of the “efficiency case” for shareholder rights. Property and commodity exchange are identified in this
perspective as the principal means of extracting surplus labor, relocating social subjugation in the
economic sphere, claimed by market liberals as “private”, inherently democratic, and a domain of
“freedom and voluntary activity”.
111 Deakin, supra note 110, 98.

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orientation of corporate goals”.112 Not just contingent inequality of capital, then, but
the “fundamental institutional framework of capitalist relations of production” and
the “institutional design of firms”113 were implicated in labor law’s critique of
corporate law, its ultimate ambition to replace capitalistic hierarchy with
“democratic” relations in the economic sphere.114 Derailed by the 1970s’ economic
crises, to a limited extent such aspirations reappeared in the 1980s and early 1990s,
with ideas of “stakeholder democracy”, retaining at least some of previous decades’
concern with the devolution of control over work to employees and moderation, if
not elimination, of institutional hierarchies inside the enterprise.
Against this background, the thesis of “flexibilization as a transformative
opportunity” 115 is seen as significant slippage. Its vision of companies as
“communities of interest”, and “…based upon a micro-corporatist coalition of
producers”116 wherein neither labor, capital nor management has a natural or
exclusive claim to control might, momentarily, appear to accord with the ideal of
workplace democracy – especially when tied to calls for “enhanced workers’ rights”
and greater worker involvement in management, perhaps even where such goals
are included only for the sake of their instrumental value in contributing to
competitive advantage (i.e., via trust). But reflexive corporate governance which, as,
for instance, under Partnership at Work, stops at consideration of workers’
perspectives and interests in managers’ and directors’ formulation of corporate
112 Ireland, supra note 22, suggests the expression “industrial democracy” usually implied the goal of the
“introduction of worker representatives on corporate boards” as under German law. See alternative
definitions provided by T.H. Marshall, Philip Selznick (both supra note 7) and Harry Arthurs, supra note
7 and Harry Arthurs, “The new economy and the demise of industrial citizenship. The new economy and
the demise of industrial citizenship, Don Wood Lecture, Industrial Relations Centre, Queen’s University,
Toronto, mimeo.
113 See Hugh Collins, Labor Law as a Vocation, 104 LAW QUARTERLY REVIEW 468 (1989), and Market Power,
Bureaucratic Power and the Contract of Employment, 15 INDUSTRIAL LAW JOURNAL 1 , (1986).
114 Ireland, supra note 22, notes Kahn-Freund’s dissent from this view (Otto Kahn-Freund, Industrial
Democracy, 6 INDUSTRIAL LAW JOURNAL 65 (1977)), rejecting the possibility of a unity of interest
embracing capital and labor, and urging the inevitability of interest pluralism and so fundamental
conflict between the two. Chantal Mouffe has criticized deliberative theory’s often similar assumptions:
Chantal Mouffe, Democracy and Pluralism: A Critique of the Rationalist Approach, 16 CARDOZO LAW REVIEW
1533 (1995); this point is taken up in Conclusion.
115 With reference to Hugh Collins, The Productive Disintegration of Labor Law, 26 INDUSTRIAL LAW JOURNAL
295 (1997), and Hugh Collins, Flexibility and Empowerment, in ADVANCING THEORY IN LABOR LAW AND
INDUSTRIAL RELATIONS IN A GLOBAL CONTEXT, 117 (T. Wilthagen ed., 1998). See, further, the analysis of
Collins’ account presented above, Section C.II.
116 With reference to GUNTHER TEUBNER, LAW AS AN AUTOPOEITIC SYSTEM (1993), 6.

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goals, falls far short of participation,117 especially when “socially disembedded
liquidity and mobility of shares” are intensifying market imperatives and increasing
pressure to subordinate workers’ rights in pursuit of greater efficiency.
For some contributors, it is only by excavating to a deeper level of analysis that we
can understand this progression. Economic history, they suggest, can demonstrate
that the structural necessity of labor’s exploitation within systems of capitalist
exchange derives not from the relationship between capital and wage labor, but
directly from the operation of competition. “Democratizing” companies, whether
radically or moderately, cannot, therefore, end labor’s instrumentalization, nor can
the re-introduction of regulations on capital movements, work councils, stake-
holding companies, social clauses, “universal labor standards” or voluntary
corporate codes: all such measures are merely “ameliorative”. 118 Only by
recognizing the historical specificity of current property forms (the company and
share first and foremost) and then re-conceptualizing them, will the transformation
to non-exploitative modes of production become possible. Consequently, to de-
commodify labor, and simultaneously restore political autonomy, fading under the
advance of neo-liberalism,119 requires the reconstruction of corporations as social
institutions, and a “process of experimentation in which they are increasingly
placed under a combination of worker, community, supplier, and consumer
control.”120 The rise of flexibility agenda, on the other hand, is said to demonstrate
that without such reconstructive measures, social democracy cannot restrain
capitalism and “that high labor standards, let alone true industrial democracy, are
simply incompatible with it”.121
IV. Reconstructing Labor Law through Social Rights
117 See, also, Catherine Barnard, Simon Deakin and Richard Hobbs, Reflexive Law, Corporate Social
Responsibility and the Evolution of Labor Standards: The Case of Working Time, ESCR Centre for Business
Research, University of Cambridge Working Paper No. 294, (Cambridge: CBR, 2004).
118 See Ireland, supra note 22, 211, citing (footnote 38) Ellen Meiksins Wood, The Politics of Capitalism, 51
MONTHLY REVIEW 12 (1999). Pension fund socialism and “shareholder activism” are dismissed for the
same reason, i.e., the imperative to maximize returns on shares at multiple points is intrinsic to
capitalism, for example, shrinking public pension provision, pension funds subject to competitive
pressures.
119 See Ireland, supra note 22, 205.
120 See Ireland, id., 217 (emphasis added).
121 See Ireland, id., 211. He also suggests this shows that global economic integration is eroding “national
class compacts” on which the corporatist and welfarist capitalisms respectively of Germany and Sweden
were based on up to the 1990s.

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Were this analysis, for sake of argument, to be accepted, to what ends, precisely,
should the re-defined, reflexive corporation be dedicated? By reference to which
values or goals could the corporation be born again as a “social institution”, instead
of one of capitalist exploitation? Scope for explicitly investing corporations with
exclusively, or predominantly, social functions, through their internal legal
constitutions, i.e., the course of action recommended in the last section, would
appear politically restricted. Might the same end-point be reached by another
route?
In answer to the phenomena described in Sections B and C above, the Supiot Report
proposes, in the EU context, a reconfiguration of labor law based upon a new
understanding, not of the corporation, but of the goal of individual employment
security.122 Its principal elements are three. First, a new concept of occupational
status.123 In the light of trends affecting work and the employment relationship, the
aim here is to “protect continuity of a lifelong trajectory rather than the stability of
particular jobs”. As a substitute for “employee status”, which, as observed,
historically combined “subordination and security”, by contrast, this would
“reconcile the requisites of freedom, security and responsibility,” thereby rectifying
the imbalances increasingly in play in the employer-employee bargain.124 It would
aim to facilitate “career individualization and mobility” on the one hand, and new
production processes, demanding higher job turnover and skills upgrading, for
instance, on the other. Its practical aspects would include protecting workers during
transitions between jobs, establishing new linkages between training and
employment, and addressing occupational transitions (for example, between self-
employment and salaried work).125
Second, an extended concept of work would replace employment as the basis for
122 Alain Supiot, supra note 23, 31, states: “Labor law, whether national or international, is rooted in an
industrial model that is currently being undermined by technological and economic changes…”, and
later, “Employment practices have always varied widely, and the industrial model has never been
universal. Yet, it was by reference to this model that the western countries’ labor law was developed. To
a large extent, the same holds true of international labor law as embodied in the institutions of the
International Labor Organization in particular” (id., 33).
123 Alternatively, “labor market” status (in the original, the expression used is statut professional ).
124 Referring principally to the rising intensity of work, a similar degree of dependence, albeit without
security of employment, income or social security in return.
125 Supiot, supra note 23, 36. See ILO/Peter Auer, supra note 73 for a similar analysis, which concludes the
need for “a new combination of employment security and social security”, and “new framework of
protected mobility (or protected LM transitions)” as “one possible form of an optimal institutional
setting for a globalizing world, at least for the developed world”); and “…allowing workforce
adjustment in relative security, without jeopardizing productivity and labor market performance”.

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access to social protection. The inclusion of “non-market work”, it is suggested,
would contribute to meeting the “requirements of equality between men and
women, continuing training, involvement in public-interest assignments, family
responsibilities and workers’ occupational freedom.” Work would, accordingly, be
re-defined as activity “…linked to some obligation undertaken voluntarily or
imposed by law, which is performed for a valuable consideration or without
consideration within some statutory framework or under contract”.126
Third, a new concept of social drawing rights, attached to occupational status and
which would permit individuals to “manage their own flexibility” and achieve
“active security” under conditions of uncertainty. Supplementary to traditional
labor and social rights, these would encompass freedom from employment, and be
discretionarily exercisable by the individual. Four clusters of rights within this
categorization are distinguished: i) rights accruing specifically from wage
employment; ii) rights common to all forms of employment; iii) rights deriving
from non-occupational work (such as caring for dependents, voluntary work or self-
training); and iv) universal social rights. The content of social drawing rights is to be
discerned with reference to international human rights and labor standards: the
Working Time Directive’s127 “Fordist definition of free time” and concern only with
workers’ health and safety falls to be re-appraised, the report suggests, with regard
to norms of respect for family life under Article 8 ECHR and ILO Convention
No.156.128
Finally, the report begins to unpack the implications of its proposed reconfiguration
of labor law for the state and for citizenship. On the basis that national autonomy
over labor regulation is compromised,129 it identifies a need for a “new modus
operandi for state intervention”. Flowing from a “comprehensive view of social
rights based on solidarity”, a new approach is outlined, with both procedural and
substantive dimensions. Procedural guarantees are necessary because the norm of
participation can no longer be restricted to political representation, on the twin grounds of
political legitimacy and regulatory efficacy. Substantive content is to be derived from
rights already located in the EU’s Community Social Charter, and ILO instruments,
126 Supiot, supra note 23, 37.
127 Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of
working time, O.J. L307, Vol. 36, 13 Dec 1993, 18-24.
128 Supiot, supra note 23, 39; Convention (No. 156) concerning Equal Opportunities and Equal Treatment for
Men and Women Workers with Family Responsibilities, 23 June 1981, UN Treaty Series, vol. 1331, 295
(1983). The indication is that law needs to take a broader view of time, and “Work must be adapted to the
worker who performs it – not vice versa”.
129 Supiot, supra note 23, 42-44.

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although these, it is added “…could usefully be written into constitutional law at
the European level…”. These two dimensions are then united in the concept of
social citizenship. This is to be a vehicle for synthesizing reorganized labor and social
security law, in circumstances where the old concept of social protection is no
longer viable. It is also proposed as a new constitutional “cornerstone” at EU level.
Amongst its additional advantages are “inclusiveness”, the linking of social and
labor rights to social integration (i.e., not only to work), and expression of the ideal of
participation.130
Thus Supiot proposes, for labor law, a reconstructed regulative ideal – individual
security based on occupational status - and a new substantive agenda, to be defined by
reference to EU and international social, labor and human rights standards. Both
elements give shape, next, to a broadened notion of social citizenship, which
extends participation from the political and civil spheres into the economic sphere,
renewing the legitimacy of exchange relations between individual, state and (where
there is one) employer – and answering the question from which this section
departed.131 How, though, do these connect, as indicated above, with the claim that
the only hope for labor, under global capitalism, lies in a reconstruction of corporate
law?
Though beyond the remit of the Supiot Report, possible linkages are signaled by
other labor lawyers. Barnard and Deakin see social rights and citizenship as having
consequences for corporate law at two levels. At the macro level of “regulatory
competition between different legal orders”, social rights “…set the parameters
within which procedural solutions are sought”, to legal determinations affecting
corporate law, as other legal domains. 132 At the micro level which, under
130 That is, because citizenship “…implies that the people it covers should participate in the framing and
realization of their rights” (id., 44) with these words making clear the indebtedness of the Report’s vision
to Habermas’ law-making ideal.
131 Simon Deakin, The Many Futures of the Contract of Employment, in LABOR LAW IN AN ERA OF
GLOBALIZATION. TRANSFORMATIVE PRACTICES AND POSSIBILITIES, 177, 195 (Joanne Conaghan, Richard
Michael Fischl & Karl Klare eds., 2002), echoing this view, at the same time, reveals a Marshallian
genealogy. Suggesting that a conception of social citizenship provided the underlying “normative force”
for the employment contract’s original function of spreading market risk through the working
population while underpinning relations of production at the level of the enterprise, social citizenship
“…extend[ed] the bases for social and economic participation in the same way that rights of democratic
participation had been extended through political reform”.
132 See Catherine Barnard and Simon Deakin, Corporate governance, European governance and social rights, in
SOCIAL AND LABOR RIGHTS IN A GLOBAL CONTEXT. INTERNATIONAL AND COMPARATIVE PERSPECTIVES, 149
(Bob Hepple ed., 2002), giving as examples the decisions of the ECJ in Case C-84/94, UK v. Council
(Working Time) [1996] ECR-1 5755, and Case C-67/96 Albany International v. Stichtung Bedrijfspensioenfonds
Textielindustrie [1999] ECR I-5751.

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subsidiarity, increasingly refers to standard-setting within the firm or enterprise,
social rights act as “general principles”, and so as “…reference points capable of
‘steering’ or ‘channeling’ the process of negotiation between the social partners”, so
that social dialogue, at all levels, becomes “framed” by fundamental social rights.
For Barnard and Deakin’s account, as for Supiot’s,133 this duality, of external legal
framing and self-regulatory process, including at workplace level, is key. Absent
explicit constitutional commitments to social citizenship rights, and in the context of
economic integration within post-national constellations, procedural law and
reflexive governance approaches are unlikely to preserve the “space for local
experimentation and adaptation” that provide its main functional rationale. More
likely is that they will constitute a “market for legal rules that can lead to a race to
the bottom”;134 at minimum, the outcome will not be clearly distinguishable from
the “leveling down” to minimum standards achievable via “negative
integration”.135
Hence, even if it is no longer thought appropriate to use law to impose specific
distributive outcomes136 at a national or supranational level, legal standards remain
necessary. Procedural and heterarchical forms of governance (of which deliberative
cosmopolitanism is one variant) still need laws driven by social objectives, as well
as those supporting individual civil and political rights and participation, in order
to secure the input legitimacy that is in turn needed if the desired ‘second order
effects”, shown in Section B to be a required element of democratic legitimacy, are
to materialise.
133 See Supiot , supra note 23, 44: “The law can do no more than lay down principles whose implementation
then falls within the scope of the law of collective agreements. It follows that a collective agreement
should no longer be seen simply as a means of adjusting the particular interests of the parties thereto, but
as a legal instrument whereby those parties are joined in the pursuit of objectives laid down by the law.
In this process of determining the public interest, independent agencies could also play a useful role
provided that democratic debate does not become sidetracked under the influence of “experts”.’
134 See Barnard & Deakin, supra note 132; see, also, Fritz Scharpf, The problem-solving capacity of multi-level
governance, 4 JOURNAL OF EUROPEAN PUBLIC POLICY 520 (1997).
135 Even given a “…close link, in practice, between procedural rights and substantive outcomes”, Barnard
and Deakin caution, “…the merits of the procedural approach must be carefully weighed against the
costs in terms of uncertainty over the meaning and application of legal rights”.
136 Including via comprehensive justiciability of socio-economic rights, for this point citing (supra note 132,
148), ANTONIO LO FARO, REGULATING SOCIAL EUROPE: REALITY AND MYTH OF COLLECTIVE BARGAINING IN
THE EC LEGAL ORDER (2000), 152.

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D. Conclusion: Reframing deliberative cosmopolitanism
Sparely defined by two of deliberative cosmopolitanism’s founding fathers,
democracy is a “principle which specifies what it means to get political results
right”. On the other hand, under the cosmopolitan hypothesis, as noted at the
outset, democratic legitimacy “…requires public justification of the results to those
who are affected by them”; and deliberation embodies the democratic principles of
congruence (“those affected by laws should also be authorized to make them”) and
accountability (the means by which decision-makers can be held responsible to, and
ultimately dismissed by, citizens).137
I have argued here that, as matters stand, there is a discrepancy between the first,
teleological statement and its subsequent operationalisation, deriving not from any
necessary defect in deliberative cosmopolitanism’s aims, but from a tendency, still,
in articulating these, to lean towards the classical liberal assumption of a division
between the public and private spheres that confines democracy, constitutions and
citizenship to one side of it.
In doing so, deliberative cosmopolitan talk partakes of a venerable orthodoxy.138
Over decades, jurisprudential analyses have demonstrated that normative
constitutional argument tends to experience difficulty in “subjecting private power
to greater scrutiny and control”.139 This has given rise to skepticism concerning
law’s autonomy from the influences of politics and market, this skepticism itself
now an established strand of legal scholarship (and one that has survived the
strongest, passing, claims of economic determinism or “synchronization”140). From
this viewpoint, contemporary “hegemonic globalization” articulates with rights-
based constitutionalism, and “the most important artifact” of this relationship is a
137 See Eriksen & Fossum, supra note 1, 4, and to recap, further, at 8: “The public sphere located in civil society
holds a unique position, because this is where everyone has the opportunity to participate in the
discussion about how common affairs should be attended to. It signifies that equal citizens assemble into
a public, which is constituted by a set of civil and political rights and liberties, and set their own agenda
through communication” (my emphasis).
138 As noted by Gavin Anderson, “Until recently, the critique that a constitutionalism which embodied these
[classical liberal] values failed to take seriously the threat from private power left mainstream
constitutional theory largely undisturbed. This can perhaps be explained by the strong belief that the
business of constitutional law is the regulation of the state…”: Gavin Anderson, Social Democracy and the
Limits of Rights Constitutionalism, 17 CANADIAN JOURNAL OF LAW AND JURISPRUDENCE, 31, 33 (2004),
(footnote omitted).
139 Id., 32, 33, and generally, for discussion of whether Dworkin’s “law as argument” approach can counter
this claim.
140 See Scheuerman, supra note 79.

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“state-civil society divide” that “…serves the crucial legitimating function of
obscuring the broader constellation of law and political power – including
corporate political power – operating in society”.141
Labor law, this article has shown, by contrast, paradigmatically focuses on the
employment relationship as a site where public and private ordering coincide, and
one where individual autonomy and collective self-rule must be guaranteed.142
Again, to use deliberative cosmopolitanism’s terms, it considers the market for
labor, too, as polity (comprising “authoritative institutions equipped with and
organized capacity to make binding decisions and allocate resources”) and forum
(“a common communicative space located in civil society, where the citizens can
jointly form opinions and put the power holders to account”).143 Historically,
national constitutions, read in conjunction with the broader social risk and resource
redistributive arrangements that accompanied them, have usually taken the same
view, in Polanyi’s double movement.144
This is often forgotten by constitutional theory today, deliberative cosmopolitanism
included, no doubt at least in part as a result of the ascendance during recent
decades of neo-liberal ideology and its representations to the contrary.145 Yet some
constitutional theorists, feminist scholars and those leaning to social democratic
values foremost, continue to press the position. “If democratic self-governance is a
moral value,” according to Iris Marion Young, “then it should be present at places
where persons have the greatest stake and where they are vulnerable to domination
by others; workplaces are prime among them.”146 Of course, it might be possible to
find principled reasons for excluding occupational life and the distributive issues
incidental to it from the purview of supranational constitutionalism. It might be
seen as necessary, for instance, to restrict the ambit of cosmopolitan deliberation on
141 See Anderson, supra note 138, 58
142 See Fossum & Eriksen, supra note 1, 7-8, defining autonomy as “…constituted, when actors have to seek
justification in relation to what others can approve of, viz., everyone who is subject to collective decision-
making must be able to find an acceptable basis for such decisions”.
143 See Fossum & Eriksen, supra note 1, 8.
144 See Block, supra note 13.
145 Consider, for example, the “good governance” narrative of the rule of law as market liberalization,
discussed in Bevir & Rhodes, supra note 5.
146 See Iris Marion Young, quoted in Fung, supra note 10, 47. Sciulli was another early advocate: David
Sciulli, Foundations of Societal Constitutionalism: Principles from the Concepts of Communicative Action and
Procedural Integrity, 39 BRITISH JOURNAL OF SOCIOLOGY 377 (1988).

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the basis of weaker communication or identification – ‘we-feeling’ - at supranational
level. What cannot be acceptable, though, is for cosmopolitan theorizing to slide
into the values of classical liberalism and thin proceduralism147 by default,148 while
communicating these selections as a neutral, natural, and value-free.149 European
integration, the project of political union, it has been observed, depends critically on
“the legitimation of shared values”, “a particular ethos”, and the attraction of a
specific way of life”.150 Historically, Europe’s constitutional values and political
ethos have been as social democratic as they have been liberal. It is not for
deliberative cosmopolitan theory, on its behalf, now to give up the ghost.
147 Anderson, supra note 138, 31 (footnote omitted) denotes a “procedural account of democracy, best
actualized through the participation of formal equals in popular elections.”
148 Scheuerman, supra note 79, 118, criticizes the experimentalist reconstruction of democracy, for
presupposing “far-reaching social equality” as a condition of its success, with reference to Joshua Cohen
& Joel Rogers, Power and Reason, in DEEPENING DEMOCRACY: INSTITUTIONAL INNOVATIONS IN EMPOWERED
PARTICIPATORY GOVERNANCE, 237 (Archon Fung & Erik Olin Wright eds., 2001).
149 See Nanz’s definition of law, adopted here, as “a normative discourse in which competing claims are
contested”: Patrizia Nanz, Democratic Legitimacy and Constitutionalisation of Transnational Trade
Governance: A View from Political Theory, in CONSTITUTIONALISM, MULTI-LEVEL TRADE GOVERNANCE AND
SOCIAL REGULATION, 59 (Christian Joerges & Ernst-Ulrich Petersmann eds., 2006).
150 Habermas, supra note 19, 8, (footnote omitted), citing John Erik Fossum, Constitution-making in the EU, in
DEMOCRACY IN THE EU – INTEGRATION THROUGH DELIBERATION?, 111 (Erik Oddvar Eriksen and John Erik
Fossum eds., 2000).

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