22 mars 2010

"Global conceptualisations and local constructions on the idea of labour law"

Adrián Goldin, Professeur à l’Université San Andrés et professeur à temps partiel à la Faculté de Droit de l’Université de Buenos Aires (Argentine), Résident IEA de Nantes 2009/2010


Is it possible to formulate an idea of labour law that has universal or at least a wide international reach? In this document it is proposed that such an idea can be drawn only in a very schematic and stylized conceptual dimension, that is proposed here in order to facilitate a comparative analysis and debate.

It seems evident that parallel to what is here identified as a basic and original idea of labour law, there are many other particular ideas of labour law, resulting from each national experience or from the common experience of those groups of nations whose legal systems share some features of diverse nature (e.g. legal culture, historical trajectory, proximity, participation in processes of integration, etc). This paper poses the hypothesis that diverse "particular ideas" of labour law have shown, both in their specific juridical structures and in the constructions of their legal scholars, diverse propensities to deviate (or not) from the afore mentioned basic general idea.

In this comparative exercise, the paper considers experiences of the area of common law, of European nations that respond to the continental legal culture, and of Latin American labour laws. In any case, it has to be admitted that these are just preliminary views merely oriented to present the already mentioned hypothesis ; its scientific evaluation will require further and deeper research.



1. Formulating an idea of labour law

From a comparative approach, we must pose some preliminary questions on addressing the topic: is it possible to formulate an idea of labour law of a (rather) universal reach? Has there, at least, ever been one, if it is the case that, nowadays, having undergone hypothetical alterations, there is no such thing any longer?
Finding an answer is not an easy task, indeed, and its obvious comparative dimension suggests it is only possible but as the product of the concerted reflection of scholars coming from the most diverse legal experiences. As it has recently been said with overwhelming honesty, few of us know many legal orders in depth besides our own ones (Blanc-Jouvan; 2007) and even fewer manage to prevent considering other scholars’ orders through the sieve of their own conceptions (Arthurs; 2007).
At any rate, it seems to be obvious that any pretence of (relative) universality calls for the recognition of that idea of Labour Law in a very schematic and stylised conceptual dimension, for only such an approach may enable it to express of such a wide-ranging transnational and intertemporal scope it is expected to have.
Aware as we may be of such severe restrictions, it might be, nonetheless, possible to try out a characterization of the idea of Labour Law, on the understanding that it will have just a hypothetical value. And that it may be justifiable as a mere starting point for a collective and comparative building task that may either let us address the idea in more rigorous terms, or, on the contrary, lead to the conclusion that there is no such idea, has never been, or else bears such a limited and elementary configuration that it renders any reflection on its hypothetical evolution a senseless purpose. In any, I will call it "basic" or "original" idea to distinguish it from other ideas that, although within its framework, bear the distinctive marks of the particular legal systems harbouring them and, hence, is lacking that purported quasi-universality.

From this modest perspective, Labour Law would be the branch of the legal order that:
• Deals with the provision of human labour within the framework of production and service processes organised by another (the job giver), to the benefit of the latter.
• In that relation the job giver is the holder of a scarce factor (capital), which is fundamental for the working of these processes which the providers need to join to obtain a consideration enabling them to satisfy their needs.
• The main concern inspiring Labour Law has to do with the fact that that service, unlike others exchanged in product markets, is inseparable from the person providing it, and, in addition, with the connatural impossibility of postponing the needs that have to be satisfied with the consideration the provider receives.
• The aforesaid inseparability prevents the original dispossession of the service the job giver is paying for, which calls for a certain degree of subjection (subordination) to substitute for that inaccessible dispossession (Favre-Magnan; 1998).
• That group of conditions in the hands of by job givers - among them, capital ownership, organizational power, priority of their interests, economic dependency, subordination - generates a structural asymmetry of powers between both subjects of the relationship (job givers or employers; service providers or workers) expressed when it comes to both setting up the job conditions and managing the relation itself.
• That virtual one-sidedness (unilaterality) in the settlement of work conditions determines that the possible outcome, considering the commitment of the worker’s body (Supiot; 2004) and his or her economic dependency, may prove highly burdensome and offensive for his or her dignity, health and sustenance conditions.
• It is that asymmetry and its effects as summarized in the previous point the factors revealing the radical ineptitude of individual autonomy - of the contract- to set up conditions expressing an ideal, let alone reasonable, standard of balanced fulfilment of the interests of both parts.
• Given that presupposition, a prevailing function of legal orders is to restrict the one-sidedness through regulatory sources - often different in nature, combination and precedence - whose common trait is the impossibility of their being displaced by the exercise of individual autonomy . Legal order fosters, or at least, acknowledges those sources.
• In spite of their diversity, legal orders recognise inspiration and grounds in a group of common values that, due to their paradigmatic universality, and for the sake of brevity, may be identified among those inspiring the creation of the ILO and its regulatory system and that are expressed - among many other sources - in the ILO constitution and, in particular, in the Declaration of Philadelphia there included. It does not seem inappropriate to consider that group of values as the grounds for that basic or original idea of labour law we intended to outline in these paragraphs.

Those might be, then, the terms of a highly tentative development of the "basic idea of labour law". At any rate, this idea should be distinguished from a different matter, this time related to the need to establish the limits of labour law or, in other words, which elements - subjects, rules, institutions - fall within its boundaries and which exceed them (Rodríguez Piñero; 2002). This issue necessitates making different, less precise decisions (taxonomic, didactic, legal ones); their treatment, however, is not completely separated from the reflection we are embarking on in this opportunity, at least on what concerns the identification of the subjects reached by their rules.

2. The "particular ideas" of Labour Law

If that "basic idea" had the degree of purported universality we hypothesise herein, it should be admitted that its contents are part, in turn, of the different "particular ideas" of labour law identifiable in every legal regime, system or experience. Those "particular ideas" although informed by the alleged "basic idea", would add their own specific and idiosyncratic elements, such as the dominant presence of one source or another, the different rule construction manners, the typology of techniques in use, the different ways of subject recognition, etc.
In the past decades, those "particular ideas" of Labour Law and, of course, the "basic idea" informing and integrating them have been subjected to a series of challenges that have put them to the test: economy claims, dominant ideological paradigms, the clamour of market internationalisation, new hard technologies and organisational work and production developments, new ways of hiring and including human labour, among others . The main interest in this document lies in dissociating them (telling the "basic idea" apart from the different "particular ideas"), since the core of this essay is the hypothesis that in the face of those challenges, some legal systems have shown a bigger propensity to move away from that "basic idea", whilst others, in spite of their having undergone significant changes, have stayed within its scope. To put it in terms dear to convergence theories, in this case we are in front of a certain convergence of challenges, but not of reactions or answers.

Indeed, on undertaking the task of weighing how affected the idea of Labour Law, typical of every legal system taken into consideration, was (which, due to the restricted extent of this essay will only be hinted at), relevant indicators are not just the group of regulatory and institutional transformations present in them, but also the academic developments conceived to interpret and follow them up. It must be conceded, in fact, that the (basic) idea and the (particular) ideas of a certain branch of the law are only externalised in a fairly systematic way in scholars´constructions. And also that scholars often imprint their objects with the mark of their particular conceptions in a indiscernible way, making it difficult to tell, then, in what degree their formulations replicate the "natural" object they intend to express or simply translate their reading or interpretation of it.
All of the above is meant to suggest the additional hypothesis that in the last decades not only has the basic idea of labour law been affected in different dimensions or intensity in each of the various legal systems - which in the medium term might affect its original condition of extended universality-, but also scholars’ constructions have been inclined to stray from that historical idea, which might have also been determined, in turn, by the structure of the "particular ideas" of their native legal orders. Were this the case, it would be clear throughout the comparative task that some of those judgements would rightfully express certain tendencies present in certain systems or legal orders but that they would not always be able to account for others that evolve in a different way. Even though it sounds as a quite self-evident hypothesis, that in the course of the comparison keeps bringing out the deep institutional gaps separating constitutively different legal orders, to put it forward may well prove justifiable on carrying out such a task as proposed here, that originates from the assumption, although subjected to preliminary discussion, of the existence of a certain (almost) universally shared basic or historical idea of labour law. This perspective entails the formulation of the third hypothesis (a mere specification of the previous two) that the legal origin - perhaps irrelevant to determine legal orders efficiency levels (Deakin, Lele and Siems; 2007)- is indeed significant when it comes to defining their evolution paths and, particularly, those of their exponents’ constructions.

In view of the purpose of this essay - the formulation and justification of merely descriptive hypotheses -, I will omit, to the extent of my possibilities, my own critical appreciation of the transformation processes Labour Law has been undergoing, as well as of the theoretical constructions operating on those processes; I have already voiced it in

 many previous works and this is not the opportunity to go back to it.
To carry out the aforesaid proposal, the following section will ponder on the impact those "challenges" (that due to the need for brevity of this essay will not be examined here, either) have had on the different legal experiences, correlates of as many "particular ideas" in Labour Law. Later, in the last section, I will attempt to draw some conclusions.


1. An imperfect sample

To test the consistency of the formulated hypotheses - their mere tenability as hypotheses, and in no way their scientific confirmation, which is beyond the reach of this essay - we will go along a traditional divide: the one that distinguishes the continental legal system, or civil law, from the Anglo-Saxon system, or common law. They both might recognise themselves in that "basic idea" of Labour Law, much as their respective "particular ideas" may differ in a clear-cut way due to various distinguishing factors. Among the most noteworthy, are their highly varied regulatory intensity, expressed in the so much dissimilar configuration of their respective source systems, and especially, in the role of the law, dominant in the continental system, of lesser importance in the regulation of individual relationships in the common law legal systems.

I will also consider, by probably inappropriately assigning it the condition of a third "particular idea", the labour laws in Latin America. I think I must do so to contribute to the knowledge of the regional experience I come from and because, in addition, it may prove useful to illustrate one approach, among others from developing economies perspectives, to the object of reflection allotted to this workshop. It must be noted, however, that this third "particular idea" is far from being as independent from the other two as they are from each other . In fact, Latin American labour laws are attached to the continental legal system and, therefore, share many of its distinctive traits. They do not constitute, in consequence, three symmetrically independent legal experiences.

2. Examining the particular ideas

a. Labour Laws of the continental legal system

i. Labour flexibility

In the last decades, labour laws in Western European countries contained within the civil law system tradition have been an object of repeated and deep reform, many of which, undoubtely, have been the product of recurring claims for the adequacy of Labour Law to efficiency considerations (Sciarra; 2005). There is an emphasis on the demands for the economic rationality of the laws, they are imposed the assessment of economic goals such as employment and labour market performance, and of companies prosperity, objectives that did not form part of their initial programme (Rodríguez Piñero; 2006) . It may, however, be said that that demand for efficiency does not consider, at least in a generalised way, the alternative of subjecting labour law to the conception of law and economics, but that it operates - although along the same conceptual line (Ugarte C.; 2001) - under the figure of demands for an increase in flexibility in regulations and practices. It is, we might say, an economic approach somewhat influenced and less rigorous, tending to question the hypothetical excesses concerning the rigidity of labour regulations of state stock rather than their existence itself .

Among the most widespread products of those processes is the generalised introduction of labour flexibility tools, particularly in relation to redundancy (lowering of costs and reduction of formal requirements). Among others we can count a wider reception and use of fixed term contracts and other forms of temporality or atypical contracts, part-time contracts, contracts with formative purposes, authorisation of private employment and temporary work agencies, prevalence of procedural protection techniques overbearing those based on substantive rules, outsourcing generalization, working time and rest periods flexibility, and the introduction of internal or functional and geographical flexibility mechanisms.
These mechanisms tend mostly to lower the intensity of protection legal orders, but, in my view, do not imply a qualitative change in the logic of protection. On the contrary, it may be claimed that, at least to a certain degree, flexibility claims and techniques in the different areas of the labour regulation system constitute a characteristic feature of the protection system itself - they only make sense in relation to a legal protection regime as the one prevailing here - and, as a result, they qualify it in different degrees, but they do not alter its nature.
Nor does the idea of "flexicurity", core of the European discussion after the Lisbon summit, that included it as one element of the European Strategy of Employment, seem to enervate the basic idea of labour law in any substantial terms. Its flexibility component pressures towards weakening the intensity of employment rules, but not towards a significant change of the idea of protection . That condition (continuity of the logic of protection) is ratified by the Danish legal order itself - referent of this proposal - in which the counterpart of the high flexibility in redundancy and the accentuated functional flexibility is a still intense regulation of salaries and employment duration (Lyon-Caen, Antoine (dir); 2008).

ii. The sources of Labour Law

If it has ever been possible to speak of the stability of labour law sources (which they were and how they related to one another in opposition to their changing contents) (G.Lyon-Caen; 2001). it should be admitted that such a condition of stability has nowadays been lost. In fact, the addition of new species is a generalised practice today, multiplying the type of relationships among them and assigning them new functions. In addition to the traditional laws and collective agreements compelling rules, different forms of international regulation are also embodied, rendering "internormativity" matters notably more complex with unresolved hierarchy relations . Also, non-binding regulations - soft law expressions - appear at international level, together with voluntary initiatives of highly diverse dimension, and there is a generalisation of the imposition of procedural rules aiming at regulating the deciding actors’ way of interaction rather than the decisions themselves.

New relations between the traditional sources - laws and collective agreements - are set up and a certain weakening of the law in face of the collective agreement can be verified , as is also the case with industrial in relation to company agreements . Furthermore, collective agreements are assigned competence that used to be within the purview of the law.

The contents of those sources - in line with the recalled tendency towards labour flexibility - bear a lower protection intensity, but not a reduction in the density of the regulating machinery that, bent precisely on that flexibility aim, multiplies the presence of regulations.

It is worth noting, nonetheless, that in spite of all those innovations notably qualifying the source system, in the continental area the law has not lost its condition of being the sphere of the incalculable (Supiot; 2010) understood as pertaining matters transcending any individual assessment or utility and including those minima that are considered irreducible to ensure people’s dignity. The remaining sources are left to harbour the calculable, what may be ruled by individual utility assessments and expressed in the negotiation, the contracts and even in the regulatory expressions of unilateral nature .

So, it must be accepted that it is in this field of sources and their reciprocal relations where the most intense changes in the European scene are noted (Sciarra; 2005)- perhaps some alteration of the particular ideas of labour law - without this bringing about any alteration whatsoever in the basic idea: the individual autonomy is still framed within a regulatory mechanism tending to neutralize its substantial asymmetry. Neither does regulatory abundance resulting from labour flexibility advances deny the basic idea (although it certainly weakens the protective intensity of labour law); as stated above, those rules of "labour flexibility" only make sense in relation to a work protection system that, although less intense, still is fully in force.

iii. Alteration in the criteria of identification of the subjects in the labour relation

If during a major part of the history of labour law only the subordinated workers constituted its main concern - there were others, but the subordinated workers field was vast and expansive enough and they embodied the most pressing social problem - nowadays that category seems to be contracting whereas the number economically dependent autonomous workers has been acquiring increasing social relevance. This evocation is, naturally, by no means an attempt to go back to the aetiology of these phenomena, rather it is meant to reflect on the way in which legislation and continental literature have taken charge of them, with the purpose of establishing if that treatment implies decisive changes in the "continental" idea of labour law and whether it, by extension, entails any relevant affectation on the basic idea of labour law.

It is evident that inequality - unbalance, asymmetry - that called for a particular treatment of subordination relations is far from having disappeared; more so, it persists in the traditional figure of subordination and extends, in turn, to other bonds of personal work, legally autonomous but economically dependent. We must recognise, in consequence, that if, at the personal work level, the space where the inequality feature settles expands, the technical protection tools, and whatever else is necessary to provide it with appropriate answers, must correlatively do so (Rodríguez Piñero (RP 17).

Thus, scarce are in continental European literature the proposals to leave aside the traditional concept of dependency - probably, as stated, in retreat, but still dominant - there are rather theoretical constructions proposing the inclusion of economic indicia to the bundle of signs (the indicia test) used at present to recognise the relation of dependency , the extension of protection to "semi-dependent" or "quasi-dependent" workers and some legislative practices to assign a certain number of protection resources to economically dependent autonomous workers (such are the already traditional cases of Italian and German legislation and the more recent Spanish regime of Trabajadores Autónomos Económicamente Dependientes - "Economically Dependent Autonomous Workers") .

In this way, labour law in the continental legal system shows tendencies of incorporation of "quasi-dependent" workers, by no means implying that the traditional category of subordinated workers, still unquestionably presiding the centre of imputation of labour law (Dockés; 2004), may no longer be in force. If it is, thus, possible for the traditional formula which served as grounds for the application of the protection system [labour + legal-personal subordination] to be replaced by a broader one in the definition of the subjective field of labour law ([labour + contractual inequality], so far that has not meant the abasement of the still dominant category of subordination. At any rate, if that new formula may imply a certain alteration of the "continental idea" of labour law, it does not entail, to the best of my judgement, moving away from the "basic idea" we have attempted to outline in the first section of this document.

iv. Other issues: fundamental rights, capacities (capabilities?), a new relation with social security

From a different perspective, case law recognition of the fundamental rights of working people, that, for their own dimension, are not subjected to the debate on labour subordination and intensity of the individual labour relations, has reached noteworthy development. As far as this work is concerned, those personal rights express, among other phenomena, a new state of critical evolution in the employer´s power of direction; if one of the objectives of labour law is to limit the power of direction, it may be said that remarkable progress has been made through this way . From that perspective, this tendency, so concisely stated, seems to go deep into the historical idea of labour law.

From another perspective, and to enable further comparison with the legal space of common law, it is to be noted that in the continental territory the idea of "capabilities", product of Amartya Sen´s workings , does not seem to have found significant shelter in scholars´ thought .

Finally, and as apparent in previous paragraphs, a more intense relation between labour law and social security can indeed be perceived. In flexicurity schemes, labour flexibility concessions in rules regulating contracts of employment seek their counterpart in the strengthening of social security tools that especially ensure the earnings continuity of workers subjected to a more unstable regulatory framework regarding redundancy and, thus, regarding their right to enjoy a legal guarantee of permanence. From a different axiological perspective - that, rather than to predicate the correlative loss of protection intensity of the rules preventing unfair redundancy, seems to acknowledge their unrelenting weakening - the theoretical proposal of the establishment of the person´s professional state implies the need to offer some treatment of transitions and mutations in a multiplicity of activity and inactivity situations that a regime belonging to the security area is in charge of integrating in a continuous sequence, ensuring in every one of them and their transitions, earnings continuity. In this way social security relates that continuity condition to the persons themselves, becoming detached from their occupational situation to ensure access to that protection.

In such schemes Labour and Social Security Law do not lose their reciprocal autonomous condition, but they relate more intimately, for this is required by the social protection needs in bonds that become changing and unstable such as links that have traditionally been part of labour law or that are being currently added due to the increasing presence of employment situations marked by inequality between the parts (although not subordinated in a strict sense), and still others that simply exceed labour law: freelance services, periods of unemployment or non-employment, of fulfilment of civic or family duties, etc.). Novelty does not lie in the relation between both branches of the law, but in the intensity of the bond that lets us state, as in the past but with accented emphasis today, that, to a certain degree, Labour Law is also what it is, depending on the type of relation it has with social security law, which it once made its main, if not only, access point.

v. Provisional Appraisal

In sum, it can be said that reform in European labour laws has been frequent and deep to the extent that it could be stated that traditional labour laws have been consigned to the world of legal-labour archaeology (Valdés dal Re; 2009). Taking two reform episodes of rigorous topicality as additional empirical evidence, the substantial labour reforms made in France during Sarkozy´s administration and those proposed in Spain as this document is being written . In none of them bear any signs of radical alteration of the basic idea of labour law. Labour law is modernized, its institutions and legal structures adapted to the changes in production forms and market workings, strategies of labour flexibility are introduced, there is even a growth in employment insecurity. Notwithstanding, the direction taken by those legal orders - in regulation reality - cannot certainly be said to have questioned that original idea.

This superficial tour across the continental experience suggests, in sum, that its own particular idea of labour law, or some of the particular ideas integrating it have undergone significant changes in some of its dimensions, such as the intensity of its protection system (according to the claims for labour flexibility), the recognition of employed people´s fundamental rights, the identification of its sources and their interrelations, the nature of its centre of imputation and its subjects configuration, its relations with social security, etc. In the same line is the contribution of experiences turning into regulatory proposals, such as flexicurity and others conceived by scholars, as the professional state of persons. It looks, though, as if none of those changes may actually constitute an essential separation from the basic idea or labour law, such as we have attempted to outline in the first lines of this document.

b. In Anglo-Saxon tradition countries

i. On their system of sources

While in countries drawing on the continental legal system one of the areas experimenting the biggest transformation was their source system one and, in particular, the scheme of relations between the law and the collective agreement (one of the basic binary equations of continental labour network), few of that was verified in Anglo-Saxon tradition countries. In them, labour law, seen as the group of state rules regulating in an imperative way minimal work conditions, is less relevant (Dukes; 2008) and, in terms of density, is far from being on a level with the ones in the continental legal tradition. The establishment of those conditions is up to the agreements between employers and trade unions, subjected to different regimes: while in some countries, as is the case in the UK, in the interplay of collective relations it is the employers´ concern to recognise the labour union or unions they are to negotiate with, in others, as in the USA, it is the law that establishes the procedure, in this case of elective nature, to determine who the certified labour union agent, that gets legal monopoly for a specific negotiation episode and a certain business unit, will be.

I think it is this source system configuration what enables, both from regulatory reality per se and from legal scholars´ constructions, the most noteworthy separation from particular ideas of their respective labour laws and, "a fortiori", from the basic idea that, in the stylised dimension we tried to picture in the first section, also shaped their legal orders. If, as perceptively marked, the law is the realm of the incalculable concerning matters that go beyond any individual estimate or utility (Supiot; 2010), its is only understandable for its absence (the law´s) to enable the most audacious separation; a legal order in which certain tools protecting a working person - operative translation of the basic idea - may be there or not (may be negotiated or not), is more likely to suffer radical alteration in its original idea .

ii. Contract of employment and subordination

Within the same logic are the theoretical constructions that, inspired on the insufficient capacity of the traditional concept of subordination to incorporate the different modes of individual labour relations get tied up nowadays in, not only question that traditional concept exclusiveness to define the centre of imputation of labour law, but they also nullify it as parameter of separation or proximity of other more or less close links, and even propose their suppression as a qualifier for the access to enjoying certain rights historically conceived to assist in maximum asymmetry situations present in human labour services (Freedland; 2003, 2006 y 2007; Deakin; 2007; Hyde; 2006; Langille; 2009; Linder ; 1999) .
While in the continental dogma there seem to be certain movements tending to both, conceptually broaden the idea of dependency, and to add further categories of workers whose legal-personal autonomy fails to hide a determining situation of contractual inferiority defined by a state of economic subjection, the aforementioned influential Anglo-Saxon literature proposes to abandon the traditional criterion of subordination and substitute it with wider-ranging categories including every expression of personal work . Those authors invoke purposes such as including situations so far excluded from the employment contract paradigm, establishing a logic of continuity for contracts outside the labour protection system, enabling deeper and more successful legal experimentation for the recognition of contractual agreements tolerating greater degrees of autonomy on the part of the worker, revealing the inadequacy of the traditional concept of subordination to recognise it as mould or matrix to identify the categories reached by and excluded from the protection system, setting up a multidimensional framework of personal work to facilitate convergence between employment contracts regulation and that of other personal work contracts.

iii. On the theoretical construction of "capabilities"
Amartya Sen´s ideas, in particular the theoretical construction of "capabilities", have certainly been welcome in legal Anglo-Saxon literature (among others, Deakin; 2005 and 2009 and, within the framework of quite a different proposal, Langille 2009). Especially, Deakin has attempted to project that conception on labour law, inspired in the idea that legal order requires the establishment of the necessary institutional preconditions to facilitate the development of individual capabilities enabling the deliberate and effective participation of individuals in market activities, a function which, to a certain extent, is embodied by the dominant state regulation in continental law . It is claimed that, to that end, neither the assignment of legal or factual contractual capacities nor the acknowledgement of property rights are enough - pure neoclassical logic so far - but that it is necessary to endow workers with other forms of institutional support besides the collective action traditional ones, to improve their participation in markets operation.

From this point of view, summarized by Deakin, that of capabilities seems to be a practice in the making, that transcends the compelling rule - but not necessarily excludes it - and that, together with security mechanisms and social assistance or other public policies allows for the application of the necessary adjustments, with the purpose of strengthening the capacity of workers in the market .

iv. Law and economics

Last, but not least, it is evident that law and economics, firmly mounted in the Anglo-Saxon world since the early 60´s, enables constructions inclined to separate their legal orders from that basic and original idea of labour law. If legal order is to be designed so as to eliminate the obstacles hindering private agreements , the space left for a legal regime as labour law, which is originally based on the structural inequality of the negotiating powers and the consequent inadequacy of the autonomy of will, and, in consequence, of the contract regulating working conditions, is certainly smaller. It goes without saying that a legal system that has adopted this conception - the one of law and economics - is likely to be, as it, in fact, is, more prone to distance itself from the original idea.

c. In Latin America

i. Some common features

For Latin American countries we will not merely mark the transformations that may be thought to affect their "particular ideas" of labour law. We will put forward, instead, and in a extremely succinct way, some common features of those laws. Anyway, it is to be said this joint treatment does not imply upholding the existence of anything that might be characterised as Latin American Labour Law; it is but a methodological effort to introduce a more inclusive "particular idea" than the one resulting from working on a specific national regime . If there is something worth anticipating to our purpose, is that the entirety of those laws seems to be comfortably framed within the stylised "basic idea" of labour law we proposed in the first lines.

To that purpose, it is worth mentioning that labour laws in Latin America share common membership to the continental legal system; then, from that perspective, their particular idea of labour law stands out as clearly different from those answering to other cultural constructions (eg. that of common law).
One of the significant differences distinguishing labour laws in Latin America from others belonging to developing countries is that they are influenced laws that, as just stated, express the legal tradition handed down by continental Europe, but they are not transplanted laws; most of those nations acquired their independence in the first decades of the XIXth century and, in consequence, before the development of the industrialization process and, therefore, before the settlement of a true legal labour system in their colonial powers.
Due to this condition legal orders of Latin American countries express rights grounded on the law as the first legal experience (Diez Picaso; 1973), the idea of public social order, active state intervention, prevalence of imperative rule and a source system which is a mixture, in different dosages in every nation, of laws and collective conventions that, as a whole, constitute a complex system of techniques for the restriction of the autonomy of will.

Certainly, belonging to the continental system does not necessarily mean that those countries constitute expressions of the so called "European social model". Due to various (historical, cultural, political) factors in the experience of the countries of the region, I hold the hypotheses that these rights express, in a different degree, a weak sense of belonging to the European social model. This circumstance, I dare say, has made them more sensitive to the neoclassical compulsions that were most energetically implanted in the 90´s, and therefore to their abrupt and disproportionate impact, the ensuing introduction of biased and inconsistent reforms, the ineptitude to start out a more rigorous process to react to the challenges aforementioned and even the tendency to subsequent restorations, anachronistic or deviated in some cases, produced in some countries as from the first years of the new millennium.

One other feature among the most singled out by literature is the authenticity crisis (Deveali; 1983) or, in other words, the gap ranging between the law and reality (Ermida;1990) and the ensuing lack of effectiveness of these orders, in different degrees, of course, at two associated, but certainly distinguishable levels:
• the generalised presence of informal work (both in the informal sector in its own sense and in formal companies that, however, do not register quite extensive parts of their own personnel ). It is obvious, as a result, that informality and the need for its reduction are part of the particular idea of labour law in Latin America (as of other developing nations) .
• a certain tendency to establish rules that exceed the regional contexts or practices and that, therefore, are not applied or at least, not always, or not fully applied. Which may be attributed to
▪ a legislative development born rather as the outcome of concessions of government of different political persuasion and with various motivations but, unlike continental Europe, not as an answer to the workers´ claims and strife; they are rights that in many cases are set up before the oncoming of a true industrialization process .
▪ the undoubted influence of European precedent and, from the 20´s on, of the ILO conventions that, after all, are mostly inspired also on European experiences. All that without a necessary correlate with the social, technological and industrial realities prevailing in the region.
▪ and also the influence of authoritarian experiences both native and imported from the old Europe. Among the latter, Franco´s Spain, Oliveira Salazar´s Portugal (particularly intense in Brazil´s case) and Mussolini´s Italy, with the noteworthy peculiarity that, once left aside in their countries of origin as soon as they went from totalitarianism to democratic institutions, they have persisted in some countries of the region to these days; it is the case of unique trade union regimes, still in force in Argentina and Brazil, or of labour union freedom restrictions that have not been yet overcome in the legal orders of nations that have, nonetheless, already acquired interesting democratic credentials, such as Chile and Costa Rica.
ii. Labour reform in Latin America; the counter-reformation
These legal orders did not come out unscathed from the reform processes displayed in many of them in the 90´s.

To start with, a certain process of institutional convergence may be noticed in those legal orders, that, regarding individual work relations, has gone along the so called labour flexibility path in several of its expressions, and regarding employment collective relations has had (although, as previously seen, not always satisfactorily) labour union freedom conventions and the principles arising from them as their convergence point . These convergence paths were driven in each of those areas by simultaneous political and ideological factors of quite different nature: in the first case, neoclassical thought, within the framework of exchange liberalization and the ensuing homogeneity in the contesting discourse of legal orders; democracy recovery and a more extended conception of a system of liberties, in the second.
In this converging dimension labour reform process in Latin America seem to have been more sensitive to the claims for external and numerical flexibility conceived to boost the nominal reduction of workforce costs and quite less receptive to the other perspective, more supported by the functional flexibility and the simultaneous permanence of the labour relations.

Along the same line of the correlative process triggered in the European Union countries, although in a certainly less trenchant fashion, there is also in Latin American countries an incipient tendency to extol the fundamental rights of a person at work, the specific ones recognised in the eight fundamental agreements of the ILO, and the "unspecified" ones of people considered in the work environment.

But at the onset of the new millennium it had already become clear that those labour reforms, within the framework of their correlative economic ones, had not had a virtuous effect on the socio-labour situation nor on the labour markets in the region: high levels of unemployment, growing degrees of informality, precarious and insecure employment, work protection inapplicability, a fall in real salaries and social protection, a significant increase of poverty and inequality . Within that framework we can find a virtual suspension of the reform process of neoclassical inspiration and, in some, a tendency of reflux (counter-reformation?) of varied intensity.

iii. The flux of the idea of Labour Law in Latin America

It must be said, notwithstanding, that reform carried out in last decades - particularly in the 90´s - could not shake the structural grounds of social rights in Latin America , not even during the period when the deepest transformations were established. At any rate, the reforms were more related with the protection intensity than with substantial transformations which might have given way to say, as was the case with European labour law, that their traditional versions were already part of the archaeology of social law. As a result of the non-substantial characteristic of those reforms and, in some cases, of the restoration of the preceding institutions, it is evident that the particular idea of those rights, although weakened, has not been dramatically changed and, a fortiori, that neither has it moved away from the basic idea.

iv. Latin America in front of latest debates

How relevant might theoretical development, as currently under discussion in industrialised economies, be for developing countries such as South American ones?

The concept of capabilities, or capacities , may shed light on the ways of dealing with informality, one of the scours conspiring more intensely against the adequate development and generalisation of social and labour protection tools. These capabilities or capacities would certainly not come in as substitutes, on the contrary, they would facilitate the access to the protection of the law and the effective enjoyment of the rights conveyed by formality. If for individuals within the protection of the legal institutions the idea of capabilities or the one of capacities may help them to "manage" with more autonomy in the market (at any rate, capabilities or capacities in addition to the traditional protection tools, rather than instead of them), for developing nations and from the same axiological perspective, this theoretical approach ought to be useful to access social protection benefits and in no way to substitute for them. It is useful for workers to be endowed with enough resources to ensure their access to protection, precisely where the imperative rule and traditional auxiliary techniques (markedly, work inspection) are not enough to carry it out. In sum, the imperative rule requires, to be fully in force, a certain minimum market power that informal workers lack and which - through capacities or capabilities - they had better be endowed with.
It is my view that the idea of "flexicurity" also has some contributions to make to the Latin American reflection on social protection. In some recent activity at ECLAC on that theoretical proposal it became quite clear that in relation to that scheme, it is the space of social protection the one requiring the most daring breakthrough and development. Far from "discovery" or "revelation", the complex idea of social protection - explicit in the theoretical formulation of flexicurity - becomes pertinent for the region, insofar as it is manifested in the simultaneous and harmonic utilisation of a continuum where to contract protection itself - traditional regulations of labour law - several other features are added: social security tools, labour market various active policies, lifelong learning and training and social dialogue as the vehicle associated to the design of a complex of such structure.
Finally, it is worth mentioning that the identification of subjects included within the protection range of labour law will also have to face, in Latin America, redefinition practices. In any case, it must be born in mind that while in industrialised economies factors prevail that are consequences of technological and organisational innovation (though other less sophisticated ones, such as informality and fraud, are also present in a lesser extent), in developing countries the subjective weakening process finds its most deeply rooted expressions in informality and other analogously primitive factors. Notwithstanding, in the latter, though to a lesser degree, other more modern and newer factors can also be recognised, especially in the more advanced technological areas.

v. Latin America and market internationalisation

The effects of market internationalisation may also affect labour laws in Latin American countries, although not in exactly the same way they operate in developed countries, and probably with more excruciating intensity. The latter may face international competition, particularly concerning direct investment and facing investment offshoring tendencies, through the most varied tools of what are generally regarded as systemic competitiveness factors (Banks; 2006). The lack of those areas in developing nations, on the other hand, lead them to make up for them with the preservation of low labour costs, often associated with the decline of protection standards. Thus, it is more complex to defend those standards in these countries and their employment rights, affected by that pressure and the one of outsourcing that tend to disorganise them (Valdés; 2001); all of which requires the most creative reactions to "reorganise" them, at the risk of, bereft of their immunological defence, these legal orders may come across insurmountable obstacles to guarantee their sustenance. It is from this perspective that the aforesaid immobility of the "particular ideas" in Latin American labour law - anachronistic restorations in some cases - may not be news to rejoice in, as it was neither the case, at that moment, of the boom of insubstantially deregulatory practices inspired by international credit organisms .

iii. Provisional appraisal

As a brief conclusion we might say that the basic idea of Labour Law - in a few words, protection given to people who work in a personal way within contractual inequality conditions - has in Latin America certain values that render its preservation advisable. Nevertheless, it might be considered that the inadequacy of the contents of the particular idea (or ideas) of labour laws in Latin America is far from being good news; that absent evolution may move local labour laws away from the most recent facts, contexts and processes - new technologies, new organisational arrangements (of work, of production), economies internationalisation outbursts, etc. - thus running the risk of turning them unfit to solve not only the old deficiencies but the new challenges, as well. This thought suggests a new hypothesis: the possibility of keeping the "basic idea of labour law", seen as a value, depends on whether the "particular ideas" of every legal order (or of every group) show a capacity for pliant adaptation. "Freezing" traditional order, comfortable as it may seem to our, labour legal scholars’, eyes, may constitute a sign of necrosis allowing for mass questioning of the basic idea.

3. The particular ideas in comparative treatment

a.On requirements from economy

All the legal orders we have considered so far have been the object of steady claims of adequacy to efficiency and economic rationality considerations. But while in the common law area countries those claims have adjusted - with bigger or lesser rigour - to the conception of law and economics and have not had to face a consistent legislative network, in the continental area countries, and also in those of Latin America, they have taken up the form of claims of labour flexibility that, in addition, have had to operate on legal extended and consistent regimes.
In consequence , the Anglo-Saxon legal scholars´ constructions have not had to overcome insurmountable restrictions to the practice of contractual freedom, which may have paved the way for the choice some of them make to move away from that basic and original idea of Labour Law that rests upon the dominant technique of curtailing the autonomy will.
As stated, in the remaining areas (continental Europe and Latin America) the same claims were projected in the shape of claims for flexibility of rules, which were not questioned as such, but for the rigidity of their texts. The highly numerous reforms that affected them would later derive in legal orders bearing lesser protection intensity, but not having given up their role of curtailing individual contracts, nor, therefore, their commitment to the basic idea outlined in the first section. Let us then say, once more, that labour flexibility mechanisms, also organised in a mighty legislative arsenal, are today but property and score of rules that are still imperative and that still impose restrictions (although of lesser degree) to the practice of contractual freedom .
It may be argued that to the determining virtuality of the homo economicus frequently presiding the evolution of the particular ideas of labour law in common law area countries, the countries of continental tradition tend to oppose the conception of homo juridicus, dogmatic construction of man and law, either implicitly - which is what would lie behind the continental preservation of the historical idea of labour law -, or explicitly, as illustrated by Alain Supiot’s monumental conceptual construction in a relatively recent work (Supiot; 2007) .

b. In relation to the system of sources

It goes without saying that at the very heart of that different impact of economic logic lies the radical difference in the source system. Even though in the continental area relations between sources are modified - in general, in favour of collective autonomy and to the detriment of the source of legal nature - and although non-binding rules are included into the system (soft law), it can still be said that the law is somewhat less vigorous, sed lex... and that soft law does not have the same dimension in the context of a legal order framed within the force of law and the constitutions regulating the labour action as in others where the former and the latter do not play a relevant role in that matter.
In the case of Latin American nations, we may claim that their continental affiliation and their weak belonging to the European social model has turned them more sensitive to the neoclassical compulsions displayed, particularly, in the 90’s and, therefore, to their abrupt and disproportionate impact, to the introduction of intense biased and inconsistent reforms, and, even, to the anachronistic or deviated restorations (counter-reformation) produced in some of those countries from the first years of the new millennium on.

It is to be concluded, then, that from the system of sources point of view, the original idea of labour law is modified if the system gives up on the equating function of the compelling rules (autonomous and heteronomous) but not if, instead, what changes is internormativity modes, provided that work conditions and social level protection are not settled, as they used to, in relation to the free play of contractual freedom. From this perspective, the structure of the system of sources - more or less voluntarist - fosters the choice of different paths when the common challenges put the very continuity of legal orders to the question. Within the framework of the law and with constitutional support, legal systems adhering to continental views tend to evolve within the basic and original idea of labour law, whereas those legal orders of Anglo-Saxon extraction seem to have fewer restrictions to move away from that idea.

c. On the concept of dependency or labour subordination

The paths also divert as regards the inclusive aptitude of the traditional idea of labour subordination. In the continental experience, that "challenge" tends to be overcome without recourse to dismantling the traditional concept - the narrative of the worker’s determining contractual inferiority situation is not conceptually postponed - but rather by broadening the concept or by adding other categories susceptible to protection, whereas in Anglo-Saxon countries constructions suggesting the plain dismantling of the idea of subordination, or even, in their place, the construction of other ideas of wider inclusive range are in full bloom.
Correlatively, the marked changes to the figure of the employer, product of outsourcing and company vertical disintegration processes, require, in countries of continental extraction, renewed legal strategies tending to the assignment of duties, rights and in general, responsibilities, whilst in the common law area countries those phenomena are seen rather as challenges to the collective bargaining structure.

Thus, the less intense the legal source regulatory tissue, the less the caution confronting the opening up, or even the dissolution, of categories determining the object of a certain legal regime and, correlatively, the thicker the tissue, the more disquieting the disorganisation inferred by the phenomenon of company vertical disintegration.

In that particular respect, we must add, as a conclusion, that not all evolution in the definition of the subjects of individual work relations implies a separation from the basic and original idea of Labour Law. Certainly not the one including categories of lessened dependency, insofar as it does not deprive the dominant category of compensatory limitation from the unevenness of the bargaining powers. What does imply separation from that idea, instead, are the recognition techniques not including that unevenness as the condition of legal order application.

d. Theoretical constructions of capabilities or capacities

The theoretical construction of capabilities appears as an intervention mechanism more required by some legal orders - those of the common law (legal system) - not provided for, by the law, with other institutional mechanisms to achieve their goals, especially in a context where the collective action tools seem to have been impoverished in a way the law is unable to make up for in these areas.
It is clear that this perspective may be invoked to accompany the performance of the legal rule, to stand in for it when it is missing and even to transcend it, or rather, simply to take its place and substitute for it. While the first options do not seem to necessarily lead to the desertion of the basic idea of labour law, basis of this reflection, the second clearly entails the separation from that idea.

e. New spaces for Social Security

Social Security Law seems to have also been assigned with new roles, when subordinated work, dominant before, loses that condition; when, at least, it loses its vocation to endure in time in relations marked by the condition of permanence. The relation turns, in consequence, unstable, it includes new profiles - for example the various levels of "quasi-dependency"- and enters in succession with instances of autonomous work, unemployment, training periods, etc. There, constructions tending to ensure earnings continuity, whose adherence to the field of social security seems highly pertinent. The aim of providing protection in transitions and interstices in no way implies separating from the basic idea of labour law; on the contrary, it contributes to enhance it, by supplementing a role that social security has been playing since the very beginning of the development of Labour Law.
Finally, it must be said that a Labour Law that keeping its basic scheme (with a function that cannot be delegated in whatever is related to the subject who is, more or less categorically, the employer), transfers or includes social security protection tools or tools from certain labour market active policies, may well be modifying its own "particular idea", but not necessarily its historical idea (it is, of course, a matter of degree, since a massive transfer of its institutions would certainly mean a substantial change in that idea).


In their statutory dimension, historical European labour laws have undergone deep changes in their particular ideas; however, neither the resulting legal orders nor the legal scholars’ constructions have drifted away from the basic idea of Labour Law. The idea of public order and, its derivation, the curtailment of individual autonomy and the principle of non-renounceability still have a predominant role. Labour flexibility tendencies are none other than property of the protection system and it should not be ruled out that, paradoxically, they may carry the virtue of contributing to the upkeep to the historical model. To summarise: more regulatory changes (logical ones, because of the prevailing role the law has been and still is bearing); less tendency to separate from the basic idea.

Labour laws in Latin America, of undeniable continental extraction, equally tend to operate within the framework of the historical idea of Labour Law; their weak affiliation to the European social model may probably contribute to explain the disproportionate impact - of biased and inconsistent reforms, anachronistic or deviated restorations - some of these legal orders have undergone in the last years.

In common law countries, whose legal orders are less structured around the law, and, as a result, tend to require fewer legal changes, legal scholars are noted to be more inclined to revise the "basic idea" of labour law. They show deeper sensitivity to economic reconceptualisation, a certain disposition for the substitution of protection techniques, for the opening of the categories defining the centre of imputation of labour law, for the disposal of the concept of dependency (as referential mould or directly as category) and for the design of other, more inclusive categories. It is only natural for a legal order that does not take the law as its primary legal experience to have less qualms in moving away from that historical idea.

All of which allows us to maintain the initial hypothesis, now stated as follows: the way of being of some "particular ideas"of Labour Law may facilitate separation from the "basic and original idea" of that branch of the law, which other "particular ideas" are less prone to go through.


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