Labour Law's Theory of Justice (original) (raw)

2011, The Idea of Labour Law

Many papers written about labour law these days, including many chapters in this volume, share much in common. This is because many labour lawyers agree with Harry Arthurs that labour lawyers and labour law face an identity crisis. 1 Whether or not we agree with Alan Hyde that 'this time. .. it is really over' 2 many of us do agree that the idea of labour law is under a lot of stress. The crisis confronting labour law has three dimensions: (1) empirical (has the real world changed so much as to leave traditional labour law beside the point, inoperable, fading from view?); (2) conceptual (are our basic concepts of 'employee', 'employer', employment contracts, and so on, still viable and capable of organizing our thinking in a useful way?); and (3) normative (are the moral ideas which motivate our enterprise still salient, robust, and capable of rallying us to the continued defence of our subject?). We do not all agree, it seems, that we need to be in a state of real crisis. But, as I see it, we agree that that is the state we are in. As a result labour lawyers face the questions of whether we should, can, and will rethink our discipline. To these questions we find a range of responses. While there is widespread agreement that there have been large changes in the empirical world of work there is no agreement on what this portends for the discipline of labour law and we can identify a number of positions: (1) there is no resulting normative crisis, and thus no need for a normative re-evaluation. Rather, we simply face the problem of developing new techniques (means) for applying old values (ends) to new empirical realities; (2) the problems are, again, not essentially normative but, rather, ones requiring conceptual innovation to ensure that labour law is not held hostage to old categories, old ways of thinking, and old ways of doing business, which may stand now as barriers to the achieving of labour law's normative goals; (3) the real problem is that we actually do need normative renovation and renewal. But among those taking this position there is no consensus * Faculty of Law, University of Toronto. 1 Arthurs, this volume. 2 Hyde, this volume, 97. OUP CORRECTED PROOF-FINAL, 4/5/2011, SPi about how that might be undertaken or achieved; (4) this sort of normative renewal is not so much required as thrust upon us and comes with a hefty priceat the expense of disciplinary coherence; (5) such 'ideal' or 'overarching' normative accounts of labour law are not possible; (6) we have had in fact many such accounts, but now the normative jig is up. Cutting across this set of positions are other differences in intellectual approach and level of focus in addressing labour law's crisis: international, regional, or domestic law? Developed or developing state focus? Public or private institutional frameworks? Doctrinal/institutional or more abstract analysis? Pragmatic policy reform or purely theoretical conclusions? Comparative approach? Historical? Locating labour law within larger and longer time scale empirical, economic, political, and social narratives? Within differing and larger theoretical paradigms? And so on. Where does that leave us and our discipline? It seems that it leaves us with an admixture of points of view about the nature of our problems, what to do about them, and whether we can, should and will do anything. This is not a terrible state to be in. A state of real disagreement is much better than a state of mere mutual incomprehension. I have been of the view for some time that labour law requires a reorientation at the basic empirical, conceptual, but most importantly, the normative level. Also that such a reorientation is possible. I do not see our problems as 'merely' those of means (technique) or 'simply' conceptual reconfiguration or enlargement. I believe that labour law needs to expand its justificatory horizons and as a result liberate itself from its traditional empirical domain and conceptual categories. The normative question 'What is labour law for?' is basic. It will be answered one way or another, and labour law will have, one way or another, a constituting normative narrative. This narrative will inform and reveal the concepts which are central to labour law and describe the limits of labour law's empirical domain. The question is, simply, which narrative will it be? But, is it possible to do more than simply put one's cards on the table at this stage? Is there something more which we can glean from what we know about our current state of disciplinary affairs, and our individual and varied reactions to it? It seems to me that we can say something more. This something more will not dissolve all of our problems, nor will it result in a consensus about 'what is to be done'. But it may permit us to see something of a structural feature in what appears to be merely an unexplained and unhelpful scattering of viewpoints. B. Labour law has always had, and will always have, a theory of justice The basic idea is this: labour law faces, as always, two sets of questions: (1) What is labour law's domain/scope? With what part of the world as we know it is it concerned? How does it carve itself off from the rest of the legal world? How do we know what issues are labour law issues, what materials to read, what subject matters go on the syllabus? (2) Within that domain, what is labour law to do?