Conference on The Future of Work, Employment and Social Protection
Annecy, January 18-19, 2001
Towards an international social order? Preliminary observations on the "new regulations" in work, employment and social protection*
Alain Supiot
Professor at Nantes University
Maison des sciences de l'homme Ange Guépin
21 boulevard Gaston Doumergue
BP 76 235
44 262 NANTES Cedex 2
France
Introduction
I have been asked to "launch a debate on which new forms of regulation
might be introduced in response to the current changes in employment
and work". The very wording of the question indicates the desire to get
away from a purely legal approach, which all too quickly boils down to
what legal or contractual rules might be introduced. Hence the use of the
term "regulation", which is supposed to provide a broader and more
flexible framework for discussion. Regulation is the "in" concept, even
among lawyers(Endnote 1), and if we are to avoid the risk of letting words think for
us, we must start by considering exactly what it means. This critical
examination, a very basic approach, will enable us to define the problem
we are to debate in more precise terms: can we control the technical and
economic changes that are currently taking place in the world of work,
and if so, how?
The great advantage of the economic theories governing regulation is that
they have broken free from the reductive view of the market economy,
and remind us that work, association and exchange, without which there
can be no market economy, are facts which are both economic and social
at the same time(Endnote 2), and thus that an economy cannot exist without the
institutions on which it is built. This emphasis on institutions as a crucial
element in economic effectiveness naturally leads us on to the idea of
having international institutions which are able to supervise the processes
involved in "globalisation". So we can understand why the idea of
regulation has been such a hit with those aiming to "civilise" the
influence of the market economy or to make it fit for humans to inhabit.
However, the idea of regulation also creates a certain amount of
potentially dangerous confusion or misapprehension. First of all, by
combining legal rules with other sorts of rules, it tends to see the law as
just one of several methods of social management, and thus fails to
recognise its dogmatic dimension. Secondly, it makes it appear that the
western way of viewing society as a community subject to rules is a
universal one. Basically the theory of regulation, like the theory of a
standard economy, cannot distance itself from the belief in universal laws
which characterises western culture. It simply takes a more complex view
of those laws.
From a legal point of view regulation appears to be an attempt to combine
the two contrasting types of rules which have existed in the west since the
birth of modern science. On the one hand we have legal rules, which
draw their strength from a shared belief in the values they are meant to
express (order, justice, freedom, equality, private ownership, etc…), and
on the other we have technical rules, which draw their strength from
scientific knowledge of the facts they are meant to represent. Technical
rules are one-dimensional (they belong to the world of facts) and are thus
practical (having to reflect the diverse nature of those facts), evolving
(having to keep pace with progress in knowledge) and refutable (allowing
contradictions or technical alternatives). Their validity is entirely
dependent on their effectiveness. By contrast, legal rules are two-dimensional (being designed to make the world as it is into the world as it
should be). They are therefore general and abstract (the diverse nature of
facts must be subsumable to them), permanent and binding (they are not
subject to the requirements of truth). Their legitimacy is based not on
scientific knowledge of the world, but on the fact that they form part of a
system of rules which is itself based on ideal values.
In its desire to change from governing men to administering objects, the
west in modern times has attempted to reconcile these two types of rules.
It has done this in two ways: first, by reducing the law to a purely
technical entity which has nothing to do with values and should be judged
by how effective it is; and second, by placing scientific knowledge of
man and nature at the heart of its system of values. Since it resulted in
man being treated as an object, this attempt to manage the world
scientifically produced some monstrous results (the Holocaust, gulags,
Hiroshima), from which we do not yet appear to have learnt all the
lessons. This is why we cannot be too careful with ideas which, like
regulation, apply the philosophies of natural sciences to human affairs. If
we take its primary meaning, which comes from molecular biology,
regulation approaches living beings as machines, whose mechanisms for
adapting to their environment can be formalised. If we understood it in
this sense, the regulation of society would involve three stages: first,
identify the mutual adaptation mechanisms which govern human
behaviour (this is what economic or socio-economic analysis does); then
express knowledge of these mechanisms in the form of behavioural rules;
finally, try to ensure that human behaviour obeys those rules. The law
appears in this programme only as a possible, and fairly outdated, way of
formalising the natural laws which scientific and technical knowledge
identify, in other words as a mere tool from which all traces of
dogmatism have been removed. The knowledge of experts in the
"regulatory authorities" would enable political disputes and conflicts of
interest to be avoided and would, as it were, rise above the old opposition
of State and market. Harmony through calculation would thus gradually
replace the arbitrariness of laws.
Not only would this approach to regulation be dangerous, it would also be
doomed to failure. The dynamics of calculation on which the modern
world is founded have developed on the basis of a shared belief in a
number of unprovable values. We must not forget that the lex mercatoria,
the merchants' law developed in medieval times, was made by good
Christians united in their belief in a God who guaranteed promises given.
It was the shared belief in this third-party guarantor which created the
confidence essential for trade beyond frontiers. Trusts were invented for
knights heading off for the crusades, and limited companies for
Franciscans who were given assets which they were not allowed to own.
In modern times the west has, admittedly, secularised these ideas and
made the State the ultimate guardian of personal identity and promises
given. But there is still a distinction between what we might broadly term
the sphere of belief and the sphere of calculation. The sphere of belief is
the sphere of what is qualitative and unprovable; it was largely dealt with
by laws, public consultation and the State. The sphere of calculation, of
what is quantitative, was dealt with by contracts, negotiation and the
market. In order to calculate you have to be able to forget the diverse
nature of objects and beings and focus only on their fundamental,
quantitative characteristics. This ability to forget, which is necessary for
calculating interest and for scientific calculations, is possible because
human reason has another side which deals with anything that resists the
abstract nature of numbers. Even today our calculations still depend on a
number of beliefs that we regard as universal truths and which are
prerequisites for the process of globalisation (faith in scientific discovery,
human rights, the value of the dollar).
It is only when the State takes charge of the incalculable aspects of
human life that the market may be viewed as a self-regulation mechanism
and seen in abstract terms, as a separate entity from the people placing the
contracts and the objects they relate to. State and market, law and
contract, thus become inseparably linked. In an increasingly complex and
international world the division of roles between law and contract is
changing. On the one hand there are ever-increasing demands on law and
the State to deal with everything not covered by the simple logic of
calculation. For example, we expect the public authorities to protect us
against the incalculable risks generated by economic and technical
"development" which go beyond the statistical limits of insurance
contracts. This is precisely why the "precautionary principle" has
emerged. But the public authorities can only meet these demands if the
legitimacy of the law is based on expert knowledge, often
institutionalised in the form of independent authorities. On the other
hand, because of the limits of the State's cognitive abilities, issues until
recently covered by the law are now handled through contracts and
negotiation. This is what is known as the "proceduralisation" of the law,
the most overlooked aspect of which is that specific, qualitative issues
previously regulated by laws are now covered by contracts. But contracts,
therefore, can no longer be seen as abstract links separate from the
identity of the contracting parties and the particular nature of the goods
and services or even people that they relate to. Each type of product or
service requires its own "regulation" or even its own "regulatory
authority" (water, food, telecommunications, medicines, finance,
aviation, products of the human body, etc.), which applies its technical
knowledge of those products and services while at the same time
weighing up the interests involved. The regulatory authority thus acts as a
new sort of magistrate or judge, taking decisions by referring both to
knowledge of the facts and to value judgments. In other words, regulation
certainly does not mean the disappearance of the "third party" which
characterises what we in the west call "the law"(Endnote 3). Without this dogmatic
reference, which both engenders and symbolises belief in a world order,
no institutional structure could survive. It is just that the modern world
prefers to see this "third party" as a great regulator rather than as the
divine figure of a "great watchmaker" or the legal figure of the State. But
we should bear in mind that neither God nor States have disappeared
from the global institutional stage. There can be no regulation without a
regulator, and there have always been many who aspire to that role.
This reassuring interpretation of the "new regulations" is the one I shall
use as the basis for our discussion. Construed in this way regulation does
not mean reducing life in society to a set of calculations for mutual
adaptation or the programmed disappearance of the non-quantifiable and
non-provable values which are inherent in our legal structures. It might
therefore help us to get away from the "occidento-centrism" which is
inherent in the very concept of law and to place the structures of the
nation-state in the broader context of the dogmatic imperative which is
common to all civilisations. Since States are no longer able to define or
impose the imperative of "decent work"(Endnote 4), it must be expressed through
other institutional channels, particularly at international level.
Redefined in this way, the concept of regulation provides a suitable
framework for tackling the problems currently facing labour law. This
law incorporates "regulatory" mechanisms for transforming relationships
based on strength into legal relationships. By allowing workers
representation and collective action it acknowledges that they are
genuinely entitled to challenge the law; on the other hand, it channels
these collective forces to promote the ongoing development of the law.
These mechanisms are what we now call "social dialogue", which
actually refers to a wide range of instruments for confronting employers'
and workers' interests: rights to information, to consultation, to strike, to
be represented, to negotiate … Of course, we can criticise the fact that
this concept is so imprecise, which is perhaps inevitable in view of the
wide range of constantly changing systems of industrial relations it is
designed to cover. But it might also be said that it goes straight to the
very heart of the matter by getting us to think of social linkages as links
through dialogue. In order to have a dialogue we must speak the same
language or use interpreters. Dialogue is therefore never reduced to a
binary relationship, since it always requires the existence of a common
language, a "third party" which Plato, in Cratylus, calls the legislator of
language. In the case of social dialogue this common language is
primarily determined by the States and, to a lesser extent, by the
international organisations, in other words by the public authorities.
Dialogue also presupposes that the speakers are capable of making their
views understood. And in the case of social dialogue it is the law which
creates these interlocutors and which channels their forces, by organising
the representation of the interests concerned and giving them the ability
to take action.
Thus, the concept of regulation cannot mean the disappearance of the
"third party" figure which characterises states governed by the rule of
law. Instead it suggests that this "third party", whether it be the State,
judges or international organisations, no longer has a monopoly on
issuing rules, since rules are also generated by the mechanism which
balances the forces operating on the labour markets. If we are to consider
what the "new forms of social regulation" might be, therefore, we must
examine the two conditions required for the very existence of regulation:
the presence of a regulator (I), and a balance in the forces regulated (II).
I - No regulation without a regulator
The States remain the keystone of our institutions both nationally and internationally.
But they are being universally destabilised, both internally by the centrifugal forces of
decentralisation, and externally by the centripetal forces of internationalisation. We
must therefore look at how the State is metamorphosing if we are to identify the new
foundations on which work might possibly be regulated.
A) Metamorphoses undergone by the State
The State is not an everlasting and universal institutional form, it was invented by the
west in medieval times. The idea of a State that never dies has its roots in the notion
of the body mystical, with the theory of the two bodies of the king, as described by
Ernst Kantorowicz. Although severed from its religious roots by the Enlightenment
and the French Revolution, the State nevertheless continued to be viewed as a super-person, the personification of a power which transcended individual interests (what
German lawyers called Herrschaft and the French called puissance publique). The
legitimacy of this public authority was challenged in the 19th century by the industrial
revolution and the political and trade union struggles which ensued. From its very
beginnings the market economy undermined the traditional forms of local solidarity
on which the pre-industrial societies were founded. This breakdown was first seen in
Europe and the United States and then moved on to affect every other country to
varying degrees as the world became westernised.
The destabilisation of social links based on family, geographical or occupational
proximity appeared at the start of the 19th century as a sine qua non of modernity. It
undermined the legitimacy of the State, whose role and very existence were already
starting to be challenged at that time. The first response to that challenge was that of
the totalitarian ideologies, which viewed the State as a mere tool in the hands of a
single party acting in the name of what were claimed to be scientific laws governing
life in society (racial laws, historical laws, etc). The State lost its legitimacy, which
passed to other symbols that were supposed to represent how societies operated: race,
class, etc. This response was a catastrophic failure, and we must never forget the
lessons we have learnt from it. An alternative response, on the other hand, was to
restore the legitimacy of the State by giving it new responsibilities. Instead of merely
being in charge of governing people and representing a dominant power, it became
the servant of people's welfare.
The State thus claimed to guarantee people's well-being, in what became known as
the 'welfare state', the 'Sozialstaat' or 'l'Etat providence'. This welfare state involved
two aspects, which developed to varying degrees depending on the country
concerned. The first were public services, in other words people were given new
rights - rights to healthcare, education, etc - which added the concept of social
citizenship to that of political citizenship. The second was wage-earning status
(employment), in other words a series of securities that came with being an employed
worker. Depending on the country in question, those securities might be directly
defined by law or might be the result of collective bargaining which was authorised or
organised by law. But in every case mandatory rules were included in the contract of
employment and formed the basis for national labour legislation(Endnote 5). The invention of
the welfare state enabled the dual trend towards individualisation and
interdependence which was developing in industrial societies to be controlled. But at
the same time as controlling the trend, it also accelerated the phenomena. Bringing
men and women into broad solidarity networks such as social security, for example,
freed them from local solidarities while at the same time making them increasingly
interdependent at national level.
Today, the open frontiers which have been the response to a whole series of factors
(economic, political and technical) with which we are all familiar are overturning the
national frameworks on which life in society has been constructed. In turn, national
solidarities are being challenged by what we call globalisation and by relocalisation
and reterritorialisation. Globalisation and localisation are the two inseparable faces of
world economic strategies that are based on the exploitation of local competitive
advantages. This dual trend towards internationalisation and localisation has
paradoxical effects on the labour markets, subjecting them to quantitative pressures to
reduce labour costs, which place labour at a lower value than capital, and at the same
time to qualitative pressures to improve work skills as a result of the demand for
innovation and greater quality on the products and services markets(Endnote 6). These trends are
beneficial for some workers (usually the most highly skilled) and harmful for others
(usually the least skilled), and they challenge the accepted forms of national
solidarity, including, of course, labour law.
The State is thus caught in a vice. On an international level "globalisation" is
producing a legal system in which international competition law, which is supposed
to embody the common interest of all different nations, is being forced upon any
States focusing on local solidarities, which are acceptable only if they do not interfere
with the free movement of goods and capital. Against this neo-liberal background
competition law is operating as constitutional law on a global scale, and the
international trade institutions are challenging the States for the role of "third party"
guaranteeing trade. But unfortunately competition law is not constitutional law. The
international economic system turns a blind eye to the social problems it creates,
which ultimately become the responsibility of States whose scope for action has also
shrunk. Internally States are facing growing demands for security, solidarity and
decentralisation as the destabilising effects of globalisation are felt. Their response
has often been to negotiate with or consult the representatives of different categories
of interests. With such practices, which have been labelled neo-corporatist, defining
what is the general interest is no longer the prerogative of the State, but becomes the
product of a trade-off between individual interests. The State is thus no longer a third
party, but a party engaged in "social dialogue".
Neo-corporatism and neo-liberalism have combined in practice to make the State a
mere tool which is subject to concepts which transcend it, such as the economy at
international level or society at domestic level. Thus it is that States, which remain
prime examples of entities subject to the law on the international stage, are losing
some of their substance, or even most of it in the case of the weakest and poorest
countries, which are caught between plans for structural adjustment forced upon them
by international trade bodies and the grey economy which provides a living for many
of their nationals, and which thereby become almost incidental, without any real grip
on the economy or society proper.
However, it is unlikely that the space vacated by the retreat of the State will stay
empty for long. The myth expounded in the west that society is being ground down to
a dust made up of rational individuals maximising their interests ignores the basics of
anthropology. Human reason is never a direct product of individual consciousness: it
is the product of the institutions which allow each person to make sense of his own
existence, give him a place in society and enable him to express his own talent.
Professional identity - the performance of decent work - is therefore something very
different from just an economic asset: it is the condition for the economy's existence,
it is its very nucleus. For if there is to be trade in products, if there is to be a market,
there must first of all be workers producing and trading. In return, involvement in that
trade ensures that professional identities are protected. "Economic laws" thus assume
that a world exists where everyone is sure of his identity. Once that identity is no
longer guaranteed by the State, people are forced to base it on something else:
religious, ethnic, regional, tribal, sectarian references, etc. This leads to new demands
for identity which destabilise States even more quickly and pave the way for violent
conflict between references, of which there are many national and international
examples today. This sort of refocusing of identity and the violence it causes
undermine confidence, encourage protectionism and thus jeopardise the economic
globalisation of which they are a product. This is why we need to ask what the new
foundations for regulation might be in an economy and a world which are open to
trade.
B) The new foundations for regulation
The developments I have just described show both that "regulation" cannot exist
without "regulatory institutions", and that the State has lost its monopoly on that role.
This is changing the ways of thinking which allowed us to conceptualise the "third
party" and to oppose it to individuals. In an institutional universe organised around
the State the terms State and market, law and contract, public and private are all
opposites. Today, each of those pairs is undergoing a shift which should help to
define the "new regulations". Where we used to oppose private and public we must
also now oppose social and economic. Where we used to distinguish between law and
contract we must now distinguish between principles and procedures. And lastly,
where the State, vis-à-vis the market, combined power and authority, these two
attributes, which were previously in the hands of a single major regulator, now need
to be separated.
1) Social and economic
In the welfare state model private interests are subordinate to respect for the universal
values expressed in the public domain. In other words, the public embodies the
private. However, with the opening-up of frontiers and the subordination of States to
a Community or global commercial order, it is now the private which embodies the
public. National solidarities operating within States are thus becoming subordinate to
the principles of free competition on which the international markets are founded.
Social rights only have substance in respect of a given debtor, in other words at a
local or national level, whereas economic rights (of ownership, contract, etc.)
exercised on the markets acquire universal scope with globalisation. The only
reference able to transcend nationality is therefore the market. This reference, which
was the principal factor in the creation of the European Community, is supposedly
intended to extend gradually to cover all products and services in every country.
Harmony through calculation, which is the principal factor in commercial trade,
would then be able to encompass all of humanity. The old distinction between public
and private is thus overtaken by the distinction between economic rights ("rights of
…") and social rights ("rights to …"). Like "private", "social" is a local, individual
factor logically subordinate to "economic", which at international level is taking the
prominent place previously occupied by "public" in domestic law. But this is all at
the cost of a reversal in the values attributed to the private and the public: commercial
law is regarded as global law par excellence, whereas public law is merely the
expression of local solidarities. This approach is reflected in the case-law of the
European Court of Justice, which defines an undertaking as "every entity engaged in
an economic activity, regardless of its legal status and the way in which it is
financed"(Endnote 7). The concept of economic activity thus becomes a dogmatic category,
indicating any activity that can be carried out by a private entity, regardless of
whether it is carried out in the private or public sector of a Member State(Endnote 8) .
This definition prompted the European judge to analyse the solidarity operating
within social security organisations as an exception to the principles of free
competition, and one to be interpreted restrictively(Endnote 9). He likewise viewed collective
bargaining agreements as a restriction on competition between undertakings which
were signatories to them, only exempting them from the ban on economic agreements
if their objectives were concerned with social policy(Endnote 10). The same reasoning was
applied to public service monopolies. This monopoly is tolerated to the extent that it
is necessary "to correct the imbalance between profitable sectors of activity and less
profitable sectors, (which justifies) a limiting of the ability of private businesses to
compete in sectors which are economically profitable"(Endnote 11).
The force of this idea (consistent with the thinking of utilitarianist philosophy which
gave rise to economic ideology(Endnote 12)) stems from the fact that the market is the only
institution which excludes all discriminating factors except money. It is the only one
to operate the idea of universal formal equality. By contrast, all institutions built on
the principle of solidarity put the collective interest before the individual interest, and
the interest of group members before that of persons outside the group. This idea thus
usefully reminds us that any legal methodology in respect of solidarity rests on a
ranking of the interests involved. It is not convincing, however, in the radical
separation it makes between economic rights (which may be universal) and social
rights (which are by their nature individual). The distinction is purely ideological: any
legal link must have both an economic and a social dimension(Endnote 13). So it must be seen
for what it is: not a scientific given but a dogmatic construct to which new rights can
be attached, not only at national level but also, and especially, at international level.
The establishment of an international market causes social rights to be seen as
necessary exceptions to the rules of competition law.
So one must be careful to distinguish between the scientific value of separating the
economic from the social - which is zero - and the same value in terms of dogma -
which is considerable. This distinction underlies the legal structures which have come
about as a result of globalised markets. It is found not only in EU law but also in
domestic law(Endnote 14) and international law(Endnote 15). And EU law shows that the consideration of
social rights can counterbalance the rules of free competition, not only nationally but
at a supranational level too. This is an extremely interesting way of building an
international social order which will act as a counterweight to the economic order.
2) Principles and procedure
The concept of the State as having supreme power sees two levels of legislation,
corresponding to two main types of rules: on the one hand the law which is deliberate
and unilateral, reflecting the general interest, and on the other hand the contract,
which is negotiated, bilateral and reflects individual interests. This clear distinction
was first blurred by the invention in labour law of a "hybrid" of law and contract - the
collective agreement. The welfare state, being unwilling or unable to enact detailed
rules on employment relationships, allowed or encouraged this hybrid to develop,
either outside the legal framework as such (the English solution) or as an alternative
to legislative action (the Nordic solution), or again as a complement to the terms of
the law (the French or German solution). But these systems do not undermine the
legislator's monopoly in defining what constitutes the general interest: whilst
collective agreements go some way towards setting norms and standards, their
purpose remains private in nature, limited to collective definition of the various
obligations incumbent on the parties to an employment contract. Things were taken a
step further when governments, keen to establish the legitimacy of the law, insisted
on prior negotiations or consultations designed to prepare the substance of the law.
This practice of "negotiated law" did far more to obscure the distinction between law
and contract. In this case the purpose of negotiating is to legislate and the sole
purpose of the law is to give legal force to an agreement.
This trend of "contractualisation" was also encouraged by the dominance of economic
ideology. As early as the 19th century the great English jurist Henry Summer Maine
wrote "The bias indeed of most persons trained in political economy is to consider the
general truth on which their science reposes as entitled to become universal, and,
when they apply it as an art, their efforts are ordinarily directed to enlarging the
province of Contract and to curtailing that of Imperative Law, except so far as law is
necessary to enforce the performance of Contracts."(Endnote 16). To say that the contract is
universal or that the market is universal boils down to more or less the same thing,
because without a contract there is no conceivable market, and where there is a
contract there is negotiation, and so the possibility of a deal and a market.
Consequently the necessary corollary of a globalised market economy would be a
decline in positive law in favour of contracts. So whilst it had not always been so, the
contract would be on the way to becoming a universal category, indicating that the
western understanding of man and society might be applied worldwide. This, at least,
is the credo of globalisation which celebrates at once the virtues of free trade and the
contract, seen as flexible, egalitarian and liberating, as opposed to the constraints of
governments and shortcomings of the law, which is seen as rigid, one-sided and
oppressive. Any law which is not the result of an agreement has thus become suspect,
and every effort is made to ensure that obligations are defined consensually.
In fact, the vocabulary of contracts is spreading to all areas of human life, including
the public domain. And this trend affects labour law above all. A feature common to
all the developed nations over the last thirty years has been that contracts are
preferred to laws in the area of labour legislation. At EU level this radical trend is
reflected in the promotion of "social dialogue" in the building of European social law.
This vague concept has brought together the two political variants of contractualism:
the right-wing variant which stresses the individual contract of employment, and the
leftist variant which places the emphasis on the collective agreement. The "social
dialogue" culminated in a major institutional innovation in the Treaty of
Amsterdam(Endnote 17). Building on the terms of the Maastricht Agreement on social policy,
this Treaty formalised the idea that subsidiarity should apply in regulating the labour
market, i.e. the law should take second place to collective bargaining(Endnote 18). Thus
collective bargaining totally replaces parliamentary debate as the expression of
democracy, as the European judge rightly observed(Endnote 19).
On closer examination, however, the current trend is more than a new ascendancy of
the contract over the law. What we are seeing is more a change which affects them
both. The law is relinquishing the job of ruling on substance, and is instead
concentrating on stating principles and laying down procedures. And these procedures
pass on to contracts the burden of the qualitative issues being offloaded by the law,
and in so doing profoundly alter their nature. Far from relinquishing their role as an
initiator, States are seeking to reaffirm it in new ways. On the one hand they are still
responsible for non-quantifiable common assets which are not subject to price
coordination (health, education environment); but on the other hand the economy and
society have become so complex that they can no longer manage these common
assets themselves. Neocorporatist methods borrowed to identify a way out of this
dilemma are doomed to fail when these common assets cannot be reduced to the
product of bargaining amongst interest groups. Thus the trend today is away from a
State which manages social matters and towards a State which acts as the guardian of
solidarity. This redefining of the role of the State, and more generally of government,
is apparent in two ways. On the one hand the State no longer aspires to do everything
itself. Instead of playing a direct part in negotiations or consultations on the
neocorporatist model, it confines itself to laying down the procedures which must be
followed in these negotiations conducted by others. But, on the other hand, it defines
the general principles which these negotiations must help to implement. Thus the
State is both withdrawing, disengaging from the management of social matters, and
reaffirming, restoring its role as the guardian of common assets.
This form of regulation is increasingly successful and there are many examples of it.
In domestic policy there have been numerous labour law reforms reflecting the will of
the legislator, who sets a general objective or principle, and that of collective
bargaining which implements this principle or these objectives (this has been the case
in France with all the major labour laws adopted since 1986, from the abolition of
government authorisation for redundancies to adoption of the 35-hour week). Similar
action has been taken at EU level with the "Luxembourg process", which sets
"guidelines" for Member States' employment policy and lays down a procedure
requiring Member States and the social partners to tailor these guidelines to specific
national conditions. Council Directive 94/45 of 22 September 1994 did the same with
businesses, requiring international undertakings to have a works council or a
procedure for informing and consulting workers. At international level the ILO did
something similar, adopting in 1998 a Declaration on Fundamental Principles and
Rights at Work which requires all Member States "to respect, to promote and to
realise (these principles) in good faith."
So these new forms of "regulation" in no way mean that the State goes back to a role
of minimal intervention, quite simply leaving social affairs to the private sector. They
express themselves rather in a policy of "government by objectives" which allows the
social partners to choose the ways and means of attaining those objectives. The
problem, if this policy is to succeed, is how to define objectives which are accepted
by general consensus. One can involve the social partners in that process (as for
example with the legislative consultations introduced by the Maastricht Agreement on
social policy). One can also, and this is doubtless the most novel feature of these new
forms of "regulation", base the legitimacy of these objectives on the presumed
expertise of specialists. This "expertise" is then institutionalised by the setting up of
regulatory authorities which are independent of both State and social partners. But in
that case the functions of power and authority held by the State alone tend to become
separated.
3) Power and authority
In the west the distinction between power and authority goes back a long way. In
Roman law, as we know, "potestas is the ability to act and auctoritas is the ability to
dictate the actions of another person"(Endnote 20). Following the advent of Christianity this
distinction informed the debate on the respective prerogatives of the Pope and the
Emperor(Endnote 21). This debate was to some extent halted by the secularisation of the State,
which combined power and authority, albeit at the cost of a separation of its
legislative, executive and judicial powers. Thereafter the distinction between power
and authority weakened and gave way to other contrasts - between State and nation,
State and civil society, State and market - which fed the institutional debate. But it is
resurfacing today with the issue of "regulation", which produces the different
functions of "operator" (who has the power to act) and "regulator" (who has authority
over this power). This distinction rests on a simple idea: the welfare state has
inherited the function of major market regulator, but it is also an economic player
which can with impunity break the laws of the market or turn them to its advantage
(as it can with other freedoms such as freedom of information). Where this risk of
confusion exists it is thus appropriate to deprive the State of one or other of these
functions (or both, in more radical versions of this thesis). The function of regulation
will then be entrusted to an authority set up specially to that end.
The opening up of markets has thus been accompanied by a proliferation of
regulatory authorities which are independent of State control(Endnote 22). At national level these
authorities have prospered with the privatisation (or opening up to competition) of
businesses and public services and the liberalisation of capital movements. Most of
these authorities are specialised and are responsible for a specific product or service
(electricity, telecommunications, television, the stock exchange, medicinal products,
etc.). "Market" authorities are the most numerous(Endnote 23), but authorities have also been set
up to help regulate a number of public services (health, hospitals), to safeguard
certain freedoms (data protection) or to explain government decisions on major social
issues (ethical review committees). At international level there are also a number of
authorities specialised in the regulation of a given service (aviation, for example), but
most strikingly, independent authorities have also been created at this level with a
general remit to regulate markets. The body with the longest and greatest experience
of this is undoubtedly the European Commission, but the World Trade Organization
was set up to pursue the same objective, on a wider stage but with more restricted
powers.
The powers of regulatory authorities are as diverse as the areas they cover, but they
have two features in common: they draw their legitimacy from the scientific or
technical expertise of their members and they are held to be independent of both
government and private operators. This independence is often questioned; the shadow
of the State looms ever large (in the matter of appointments for example) and private
lobbies are never far away. And the remit of authorities always goes beyond simple
technical expertise, requiring them to make value judgements and to rule on disputes
rather like a scientific, technical or economic judiciary. For both these reasons the
tendency is to require these authorities to observe broad procedural principles as
derived from the European Convention on Human Rights and Fundamental
Freedoms(Endnote 24). In other words, they are being directed back to the essence of legal
methodology.
This re-emergence of "authorities" prompts us to remember the important question
which in France gave rise to the essential concept of social law in the late 1930s. The
lawyers who drafted this legislation had realised that social conflict cannot be
resolved using ordinary judicial methods, whereby a dispute is measured against a
previously defined rule (whether that rule is contained in a law or a legal precedent).
Most of the time the whole point of social conflict is to get a new rule adopted. This
is why these jurists had placed such faith in the creation of a social judiciary, which
had considerable socio-economic powers and was able, by ruling on disputes, to build
a body of social law which was genuinely geared to changes in the world of work and
not to the relationship between economic or political forces(Endnote 25). Paradoxically this idea
is flourishing today in the economic rather than the social sphere. Thus there is an
imbalance between an economic sphere, in which authorities predominate, and a
social sphere in which there are none, with all the undesirable effects of a social
versus economic conflict which that entails. The authorities responsible for markets
do not see it as their job to address the social dimension of the problems they deal
with. That means not that this dimension does not exist, but that there is no one to
authorise States to invoke social considerations as a way of limiting the effects of
competition law. It leads to decisions which can, at a single stroke of the pen, destroy
the livelihood of entire societies, most notably the poorest(Endnote 26).
There are two ways of escaping such follies. The first would be to "de-specialise"
regulatory authorities and enable them to take equal account of the economic and
social aspects of cases they are required to judge. The way here would be to have
more broadly based authorities and specialist groups within these. But the example of
this which we already have, the European Commission, points up the limitations of
this solution: notwithstanding laudable efforts and considerable achievements, the
Commission's Directorate-General for Social Affairs has never had as much influence
as the Directorate-General for Competition. The other way is to set up authorities
with special responsibility for regulating the social dimension of markets. These
authorities could rule on disputes where a State or a trade union believed that the
application of competition law infringed fundamental social principles or, conversely,
cases in which a State or a company thought that specific social legislation
constituted an unfair barrier to free trade. There might also be a role for them in
regulating the forces operating within the labour market and ensuring that a proper
balance was maintained between those forces.
II - No regulation without a balance of forces
The old corporate structures were swept away by the Industrial Revolution, but as no
lasting institutional vacuum can persist between the State and individuals, new
players emerged to replace them on the legal stage. The large modern enterprise was
the first focus of attention, with the introduction of legislation on commercial
companies. In the area of labour law, the old journeyman guilds gave way to unions,
for individual trades first, and later for whole industries. Hence the development of a
collective plan negotiated jointly by labour and management, the existence of which
is guaranteed by the ILO conventions on trade union freedom.
Just as the welfare state is structured differently from one country to the next,
collective labour relations too are treated differently in law from one country to the
next. But notwithstanding this diversity, collective worker representation has always
been modelled on the way in which the economic power of the employer is organized,
since its aim has always been to maintain a balance of power with management.
Consequently problems of action, representation and negotiation manifest themselves
differently in labour law and in civil (or common) law. This difference may be
summed up as follows: civil law takes the "players" (i.e. legal persons) as its starting
point in defining the legal frameworks for their actions and negotiations (i.e. the law
on representation and contracts). In dealing with the question of representation in the
negotiation of a contract, for example, civil law will take as its initial given the
existence of a person to be represented and will then decide how that person is to be
represented and his interests defended. In collective labour relations the exact
opposite obtains. Here one starts with the frameworks for action and collective
bargaining (i.e. from a given labour structure) and then defines "players" (i.e.
collective legal persons, with power to negotiate), and this definition of legally
empowered representatives precedes and determines the identification of the groups
represented. This is true firstly of the economic activity of employers: the first sense
of the word "undertaking" describes the action of one who exercises his freedom to
act, i.e. the action (under)taken, and only in a secondary and derived sense does it
describe the legal organisation which is the consequence of that action, i.e. the
business or company formed. It is also true of collective action by the workforce,
which has to tailor itself to the forms of economic activity engaged in by the
employer: trade unions are primarily a means of collective action and they organise
labour in the manner such action requires.
So in seeking to understand the factors which bring about change in collective labour
relations one cannot begin at the obvious starting point of undertakings and trade
unions and then study the new forms in which disputes or agreements arise. We have
to do it the other way round, looking first at the new forms of economic activity and
discovering what has caused the imbalance between economic and social forces (A),
before we can decide how that balance might be restored (B).
A) Upsetting the balance between economic and social forces
The big companies are no longer homogeneous work communities obeying the orders
of a single head within the laws of a single State. They are adopting new structures
and adapting to a new environment, while collective action by workers, however, is
still locked in the past.
1) New structures
The pyramid model of the large industrial firm with its integrated hierarchical
structure covering the entire process of product manufacture was mirrored by the
organisation of all workers involved in that manufacture into industrial unions,
eliminating professional identities based on trades. Whether or not the firms were
organised in sectors determined whether the industrial unions had their centre of
gravity at sectoral or company level. The forms of worker representation necessarily
mimicked the ways that capital dictated that work should be organised.
The ways in which work has been organised have undergone fundamental
transformations over the last twenty years. Technical progress, the opening up of
frontiers to international competition, the growth of knowledge and the division of
labour have all had the same destabilising effects on businesses as on States. The
difference between States and businesses has less to do with structure than with
reference. The State takes qualitative values transcending the interests of capital as its
reference; it is responsible for people's destiny and it takes the long-term, lifetime
view. A business' reference is to quantitative, capital-based values; it is responsible
for providing products or services and it takes the short-term view dictated by the
markets. But like States, large firms are finding it impossible to take all decisions at
the top, and are having to invent new ways of governing people. Like States, they are
facing enormous problems in justifying their existence, which in their case have
resulted in greater authority for shareholders and less power for managers. As with
States, those in charge have had to redefine their role by fixing objectives but leaving
details of their implementation to individual and collective bargaining not only with
the workforce, but also with subcontractors whose numbers are burgeoning in the new
network-based organisation. It is even the case that independent authorities are found
in companies, both in the financial field (market authorities; auditors) and in the
product field (standards and certification agencies). The original meaning of the word
"enterprise" (the act of undertaking) has returned, to the detriment of its derived
meaning (institution resulting from that act). Hence the big company can no longer be
construed as a homogeneous work community subordinated to its head and
functioning under national law. It forms part of a network, i.e. a multi-centred
structure with international ramifications and mobile borders, each element of which
is both autonomous and required to serve the interests of the whole.
These developments call into question the traditional categories of labour law theory.
This applies in the first instance to the concept of "subordination" (the boundary
between directly employed and self-employed labour is becoming blurred)(Endnote 27), but it
also applies to what is understood by "employer" (the point of entrepreneurial
decision-making is fanning out into groups and networks), "branch of activity" (the
refocusing of companies on their main business and the farming out of other activities
mean that the collective status is being geared towards the main business, thus
restricting the coverage of branch agreements), "employment" (the status of the
workforce is becoming fragmented, with the decentralisation of collective bargaining
and the development of peripheral employment: marginal forms of employment, part-time working etc), and "collective agreement" (the meaning of which is changing as
collective bargaining functions are extended).
2) New environment
These changes in company structure are compounded by an upheaval in the company
environment. The opening up of markets to international competition is having
ambivalent effects on most. On the one hand, it emancipates companies from the
powers of States. The mobility of capital, goods and people, coupled with the
resources of transport and information technology, also enables them to place States
in a position of economic competition by choosing to establish themselves on the
territory of those which impose the least constraints on them, while taking advantage
of the resources of those which offer them the best material and intellectual
infrastructure. Supported in this respect by the market authorities, they are even able
to make States pander to their appetites and oblige governments to dismantle laws
which would restrict their profitability. On the other hand, "globalisation" makes
companies increasingly vulnerable. The free movement of goods leads to the
disappearance of their captive markets. The free movement of capital exposes them to
speculative takeovers and to the volatility of the capital it releases. The free
circulation of information compounds these risks by exposing them to the critical
gaze of consumers, shareholders and environmental pressure groups.
Such upheavals have led the biggest companies to arm themselves against these new
risks. Vis-à-vis their shareholders they have adopted a policy of openness by
subjecting themselves to the rules of corporate governance(Endnote 28) and to the demands of
so-called "value creation" (albeit at the expense of the company's "human resources").
Vis-à-vis consumers they have improved the ways in which they control public
opinion by gaining a hold on the major media, either directly (financial control) or
indirectly (financing of advertising). Finally they have learned how to curry favour
with politicians and intellectuals by winning them over to the company's values, or
even by quite simply buying them, as witnessed by the countless corruption scandals
which are universally tarnishing public life (Endnote 29).
These profound changes in the ways in which companies operate economically to a
large extent render the institutional framework of social dialogue inoperable. This
was essentially conceived as a face-to-face between employers and trade unions under
the watchful eye of the State. The mechanisms of representation, negotiation and
collective action are entirely oblivious to anything that has to do with the products of
labour, their intended recipients and public information. The balance of forces
between the economic action of companies and the collective action of workers,
which is necessary for "social regulation", is thus disrupted, and it is social regulation
which loses out. One of the great tasks facing labour lawyers in years to come will be
to invent ways of restoring that balance, many possibilities for which are already
available in practice.
B) Possibilities for returning to a balance of economic and social forces
The great challenge facing trade unionism today is how to adapt to new forms of
corporate organisation. It too will probably not be able to escape the network
approach. The pyramid structure of mass trade unionism is likely to be replaced by an
approach which coordinates various types of representative units located as near as
possible to the genuine centres of corporate decision-making (not just businesses and
branches any more, but also international centres, groups, company networks,
districts, trades, etc). This development is essential if the unions are to cope with the
expansion and fragmentation of the interests that they represent: the interests not just
of skilled male workers employed by large companies in developed countries, but
also those of workers in insecure or part-time jobs, women, the unemployed,
pensioners, those employed by sub-contractors, those who are partially self-employed, etc. It is also essential if the unions are to cope with the expansion of the
functions of collective bargaining, which no longer merely covers wage levels and
working hours, but also addresses issues of general interest with the development of
negotiations on jobs, the organisation of working hours and the development of
labour law (legislative bargaining).
Thus the whole complex of law governing collective labour relations needs to be
reconsidered. Negotiation, representation and collective action form a three-point
structure on which social dialogue must be based. Indeed no collective bargaining is
conceivable without the involvement of legal persons appointed to represent the
interests concerned and endowed with the resources needed to have an effective
influence on the terms of the negotiations. These three dimensions of collective
relations are closely bound up with one another and are all affected by the new
organisation of labour in the world. The key element here is probably not so much to
introduce "new regulations" than to adapt the legislation governing collective labour
relations to take account of the new forms of corporate organisation. Various steps
have already been taken in this direction, in particular concerning worker
representation in groups of enterprises. There are already tentative openings allowing
collective bargaining to break out of the straitjacket of branches and companies and to
develop in new fields (districts, networks, international level). Nothing, or hardly
anything, has been done as yet on the collective action front: the right to strike should
be re-examined, as it too can no longer continue to be viewed as a binary interaction
between an employer and his employees.
However, as I have been asked to talk about "new forms of regulation", I will leave
these key questions aside in order to focus more broadly on what new social forces
might be capable of restoring a minimum balance between economic rights and social
rights at international level. According to Manuel Castells, the only counteracting
forces able to play a role in the new world economic order are identity movements
alien to the principles of the organisation of society in networks(Endnote 30). If this hypothesis,
which is strongly supported by the observation of current events, is correct, any hope
of regulating this globalised order will no doubt have to be abandoned, and we shall
have to wait for major political, social or ecological disasters to end the single-party
dominance of free trade over the institutions of world commerce(Endnote 31). Even so it is
possible that there are ways, albeit very limited ones, of restoring a balance of forces
which is based on the very reasoning behind the new economic organisation. In order
to gain access to them we would have to extend the scope for action and collective
representation to areas currently out-of-bounds to them, to bring them out of the
closed arena in which they are locked by an institutional conception of undertakings
which no longer corresponds to present-day forms of economic action. Two types of
method can be employed here. The first involves using the new freedoms inherent in
globalisation: the freedom of choice enjoyed by consumers and investors and freedom
of information offer ways to influence the social policy of business-owners. The
second involves the reverse: restraining global competition law by emphasising the
distinction between the economic and social fields and by strengthening the authority
of institutions concerned with social issues. In both cases the objective is the same,
however: giving workers back the ability to take collective action in fields which
currently lie abandoned, without any sort of counterbalance for firms' economic
initiatives. Many routes could be explored in this direction. I will confine my remarks
to three fields which appear particularly promising for this revitalisation of collective
action: information, consumption and finance.
1) Targeting information
The new information technologies and control of the media have become powerful
instruments in the hands of companies. These new powers call for counter-powers,
both within and outside firms.
Within companies the gap has widened between the information resources available
to employers, thanks to new information technology (intranet networks), and those
which the law affords to the workers' representatives, who remain penned inside the
legal confines of the company and have to rely on traditional forms of communication
(handbills, notice boards). Use by workers of information technology outside their
employer's control has already given rise to litigation. It should become accepted that,
wherever employers use computerised networks to convey information to their
employees, the employees' representatives should also have access to them in
accordance with arrangements to be laid down by law or agreement. The same
network approach should also apply when it comes to the economic information
available to the staff representatives. It must be possible for contacts to be established
between the employees of the contracting company and those of its subcontractors.
Outside the company workers' freedom of expression concerning their work needs to
be spelt out in detail. The information which the trade unions give the public must be
able to cover not only working conditions, but also the company's products. The
radical separation maintained in the industrial world between labour and the products
of labour is no longer justified today. In a "tertiarised" economy, work is concerned
more with tokens than with things. Hence the activity of the worker cannot be
dissociated from the product of that activity and consideration of the product
necessarily affects the employment relationship. Legal precedent has begun to draw
certain consequences from this concerning the rights of workers' representatives to
information and consultation(Endnote 32). Moreover, work in the "post-industrial" era is no
longer concerned solely with what in civil law are called "generic objects" (choses de
genre, Article 1246 of the Civil Code), i.e. mass-produced articles which are
interchangeable and independent of the skill of the workers. It gives increasing
prominence to "specific items" (corps certains), i.e. quality products for which the
company must provide an assurance of safety and traceability. This tends to mean that
the link is restored between the professional skills of the worker and the qualities of
the product, a link which Taylorism had sought to break. With these developments,
products are once again being considered in the contractual domain, justifying the
fact that counterbalances have been introduced to the monopoly which companies
enjoyed on the information provided on their own products. The need for this has
been recognised in consumer law, which gives consumers the right to information(Endnote 33).
For its part, Article XX of GATT (1994) allows any member of the WTO to take
measures necessary to prevent the import of "articles manufactured in prisons" and
for the "protection of the health or life of persons" or for the "conservation of non-renewable natural resources"(Endnote 34). Leaving aside the debate on the social clause in
international trade agreements, the principle that the public has the right to
information on the social and environmental dimensions of products seems to be
indisputable, and indeed undisputed, today.
This right presupposes that the trade unions also have a right to inform the public
about these dimensions(Endnote 35). Various initiatives have been taken on these lines by
associations or unions posting information on the internet about the social policy of
the big companies, particularly their relations with subcontractors in developing
countries(Endnote 36). The companies in question have reacted by issuing codes of conduct and
social labels, the effectiveness and sincerity of which are open to question in the
absence of reliable certification procedures covering their content and application
along the lines of those that apply for ISO standards. This is why some people are
calling for the introduction of a market in the social certification of good practice, the
idea of which is to draw both certifying bodies and certified firms into a virtuous
circle(Endnote 37). Notwithstanding the value of these initiatives and proposals, it is reasonable
to argue that two conditions must be met without which public information will be
vulnerable to all kinds of manipulation. The first, which has already been mentioned,
is the existence at international level of proper social regulation authorities which
would guarantee the validity of the information disseminated. The second is to give
trade unions and consumers' associations the financial resources to provide social
information for the public. Funds could be set up for this purpose fed by a levy
consisting of a percentage of firms' advertising budgets. Without this kind of
financing the public will never hear the other side of the argument and will only ever
receive the one-sided propaganda of the companies dominating the markets.
2) Targeting demand
The scope for States to take measures restricting freedom of competition on social
grounds was mentioned briefly above (section I-B-3). This also presupposes the
involvement of social regulation authorities able to ensure that such measures are
likely to promote the equalisation of working conditions throughout the world and do
not serve to protect the richest countries which would prefer to close their borders to
both workers and products from the poorest countries. It is worth reflecting here that
the ILO is particularly well placed to become that authority. Such an authority could
be called on to intervene, either directly or by way of a complaint to the market
economic authorities (for example, the WTO's Dispute Settlement Body).
On the subject of trade union action in this field, it is appropriate to go back to the
origins of the right to take collective action. This was originally an immunity granted
to trade unions which took collective action against an undertaking in the legitimate
pursuit of social protection. This immunity resulted in France from the abolition of
the offence of "coalition" in 1864 and in the USA from the Hunt ruling (Mass; 1842)
and the Clayton Act (1914). The transition from coalition to strike reflected the binary
structure (employer/employees; capital/labour) imposed on labour law by the
industrial model, a structure which does not allow for any consideration of products
or consumers or of disputes between dominant and subordinate employers. But in the
new world economic order, pre-industrial forms of collective action are making a
come-back, and with them the quest for an alliance of workers and consumers to
target the Achilles heel of the big companies: sensitivity to demand for their products.
The expression par excellence of this alliance is the boycott. This is a formidable
weapon which is making its reappearance in the current social arena. Last month, for
example, the threat of a boycott was enough for Coca-Cola, in the dock for many
months over racial discrimination against black workers, to decide in favour of a
transaction which will cost it $192.5 million(Endnote 38). In France the mere threat of a boycott
of its products led Total to give a public undertaking to contribute to repairing the
damage caused by the Erika disaster; an effect out of all proportion to what would
have been the consequences if the seamen aboard the vessel, recruited under a social
flag of convenience and screened from the main contractor by a chain of
subcontractors, had gone on strike.
Recognition of the right to boycott and its incorporation into international legislation
is thus firmly on the agenda. There is no doubt as to its legal status as far as the rules
of free trade are concerned: within the meaning of Article 85 of the Treaty of Rome it
counts among the "concerted practices ... which have as their object or effect the
prevention, restriction or distortion of competition". The French courts even subject it
to harsher treatment than an agreement between undertakings or the abuse of a
dominant position, since they do not even require proof that the call for a boycott has
had a significant effect to declare it unlawful(Endnote 39). However, this prohibition should not
be applicable to action taken by workers' trade unions(Endnote 40). In a recent case the Paris
Court had referred to it a ruling of the Competition Council against unions which had
taken concerted action to prevent a firm from engaging the services of a printer not
covered by the collective agreement. The Court pointed out that the rules of
competition law only applied to economic agents pursuing an activity on the market
in question, and ruled that the Competition Council was not qualified to pronounce on
the action of the trade unions, which were not operators on product markets(Endnote 41). We can
see here that the legal concept of "economic agent" allows an area to be defined
which falls outside the purview of competition law and the jurisdiction of the
economic market authorities. This does not mean that any form of concerted action
must be deemed lawful, but it does mean that the lawfulness of such forms of action
is the principle and that measures relating to them at international level must be the
prerogative of the social market authorities.
3) Targeting finance
I mention this third field of collective action by workers merely for the record. Like
consumers, shareholders can also be sensitive to information on the social policy of
companies. Here too campaigns have been launched, particularly on the Internet, to
promote "ethical investment opportunities"(Endnote 42). The development of a savings scheme
or of wage funds managed by the workers' representatives could be one of the points
considered in the social strategies of firms. However, this is a field where specific
national concerns feature very prominently. These sorts of ideas have aroused most
interest in the English-speaking world. There is a whole body of British and
American doctrine promoting a much wider view of the interests which must be taken
into account in the running of companies(Endnote 43). Alongside the interests of the
shareholders, those of other "stakeholders" in the business should also be taken into
account, the first in line being the workers. Noting the devastating social
consequences of strategies based solely on profit in a deregulated global
environment(Endnote 44), this interpretation of corporate governance keeps the instruments of
such strategies, but uses them for the benefit of all the stakeholders in the company
(workers, consumers, etc). This means, for example, that workers who pay into a
pension fund may demand that the fund should require firms in which it holds shares
to take account of social and not just financial requirements(Endnote 45). In the same way, the
introduction of non-executive directors could serve to represent the interests of the
workers or consumers as well as those of the shareholders alone.
These ideas do not make much headway in countries like France, which have never
really succeeded in developing a popular share-owning culture. They are
incompatible with the German concept of Mitbestimmung, which is based upon a
clear division of roles between the shareholders' representatives and those of the
workforce and has no place for the "unnatural" phenomenon of the worker-shareholder. More generally finance as a weapon is linked to the development of
pension funds and cannot therefore play a major role in countries which remain
attached to pensions based on allocation.
Nantes, 31 December 2000
Alain Supiot
Professor at the University of Nantes
(CNRS/MSH AngeGuépin)
*:Introductory report for the round-table discussion on "Methods, actors and levels of new political
regulations", France-ILO conference, Annecy, 18-19 January 2001.
Endnote 1:
See the copious documentation from the Nice conference on "new forms of regulation": J. Clam and
G. Martin (ed), Les transformations de la régulation juridique, Paris, LGDJ, 1998, 449 p.
Endnote 2:
Cf R. Boyer & Y. Saillard (ed), La théorie de la regulation : état des savoirs, Paris, La Découverte,
1995.
Endnote 3:
Cf. A. Kojève, Esquisse d'une phénoménologie du droit, Paris, Gallimard, 1981; P. Legendre,
L'empire de la Vérité. Introduction aux espaces dogmatiques industriels, Paris, Fayard, 1983; and by
the same author Sur la question dogmatique en Occident, Paris, Fayard, 1999.
Endnote 4:
See Decent work, report by the Director-General of the ILO to the International Labour Conference
(87th session, 1999).
Endnote 5:
Cf. Critique du droit du travail, Paris, PUF, 1994; R. Castel, Les métamorphoses de la question
sociale. Une chronique du salariat, Paris, Fayard, 1995.
Endnote 6:
See R. Reich, The work of nations, New York, Alfred A. Knopf, 1991; translated into French under
the (very poor) title L'économie mondialisée, Paris, Dunod, 1993; M. Storper and R. Salais, Worlds of
Production, Harvard University Press, Cambridge MA, 1997 (French version: Les mondes de
production, Paris, EHESS publ, 1993).
Endnote 7:
ECJ, Höfner and Elser, Case C-41/90 [1991] ECR I-1979, para. 21; Fédération française des sociétés
d'assurance and others, Case C-244/94 [1995] ECR I-4013, para. 14; Albany, Case C-67/96, judgment
of 21 September 1999, para. 77.
Endnote 8:
ECJ, judgment in Höfner and Elser, paras. 21 and 24.
Endnote 9:
ECJ, Cases C-159 and 160/91, Poucet & Pistre, [1993] ECR I-664, Droit Social 1993, 488, note Ph.
Laigre and commentary J.-J. Dupeyroux; ECJ judgment of 16 November 1995, Case C-244/94
(Coreva), Droit Social 1996, 82, note Ph. Laigre; ECJ judgment of 26 March 1996, Case C-238/94
(Garcia), Droit Social 1996, 707.
Endnote 10:
ECJ judgment of 21 Dec. 1999 in Albany, paras. 60 ff.
Endnote 11:
ECJ judgment of 19 May 1993 (Corbeau), AJDA 1993, 865, note F. Hamon, quoted § 17.
Endnote 12:
On economic ideology see the seminal work by Louis Dumont: Homo aequalis I. Genèse et
épanouissement de l'idéologie économique, Paris, Gallimard, 2nd ed. 1985, 270 p., From Mandeville to
Marx; the genesis and triumph of economic ideology, Univ. Chicago Press, 1977.
Endnote 13:
The work relationship, for example, is indissolubly an economic and a social relationship. Markets
are constituted legally in conditions which depend very much on "social" (national) factors.
Endnote 14:
In English law staff matters are regarded as a "non-commercial" issue which does not have to be
taken into account when subcontractors are selected for a public service (cf. S. Deakin: Privatisation,
enterprise restructuring and labour law in Britain, French translation published in Le travail en
perspectives (coll. work), Paris, LGDJ 1998, 391-401.
Endnote 15:
The World Bank is required to ensure that sums from any type of loan are used with due attention to
economic and yield factors and disregarding political influences or considerations or any other
influences or considerations which are not economic in nature (cf. F. Maupain, "L'OIT devant le défi de
la Mondialisation - de la réglementation à la régulation internationale du Travail?" (coll. work, not yet
published).
Endnote 16:
H. Summer Maine: Ancient Law. Its Connection with the Early History of Society and Its Relation to
Modern Ideas, 1861, French translation Courcelle Seneuil, Paris, Durand & Pédone, 1874, p. 289.
Endnote 17:
Art. 138 (new numbering) of the EC Treaty.
Endnote 18:
On this "horizontal" dimension to the subsidiarity principle, see B. Bercusson, European Labour
Law, London, Butterworths, 1996, p. 555 ff.
Endnote 19:
European Court of First Instance, judgment of 17 June 1998, Case T-135/96 (UEAPME), Droit
Social 1999, 53, commentary M.-A. Moreau, see § 89.
Endnote 20:
P. Noailles: Du droit sacré au droit civil, Paris, Sirey, 1949, p. 250, and by the same author Fas et
Jus. Études de droit romain, Paris, Les Belles Lettres, 1947, p. 223 ff., esp. p. 274. On the origin of the
concept see E. Benveniste: Le vocabulaire des institutions indo-européennes, Paris, Minuit, Vol. 2,
1969, pp. 148-151.
Endnote 21:
On this point cf. the famous letter sent in 494 to the Byzantine Emperor by Pope Gelasius, which
distinguishes auctoritas sacralis pontificum et regalis potestas (see full text translated into French by
G. Dagron in Empereur et prêtre, Paris, Gallimard, 1996, p. 310 ff.).
Endnote 22:
There is plenty of literature on this. For a study of comparative law see N. Lomgobardi: Autorités
administratives indépendantes et position institutionnelle de administration publique, Rev. fr. dr. adm.
1995, pp. 171 and 383. For France: C.-A. Colliard & G. Timsit: Les autorités administratives
indépendantes, Paris, PUF, 1988; J.-L. Autin: Du juge administratif aux autorités administratives
indépendantes: un autre mode de régulation, Rev. dr. pub., 1988, p. 1213 ff.; M. Jodeau Grymberg, C.
Bonnat & B. Pêcheur: Les autorités administratives indépendantes, Cahiers de la Fonction publique et
de l'administration, No. 190, May 2000, pp. 3-14.
Endnote 23:
See M.-A. Frison-Roche: Droit, finance, autorité, to be published shortly by PUF.
Endnote 24:
Cass. Com., 18 June 1996 (Conso), B. civ. No. 179; Ass. plén., 5 Feb. 1999, (Oury), B. civ. No. 1; La
position du Conseil d'Etat est très en retrait: Cons. d'Et., Ass., 3 Dec. 1999 (Didier); see J. Ribs & R.
Schwartz: L'actualité des sanctions administratives infligées par les autorités administratives
indépendantes, Gaz. Pal. 28 July 2000, pp. 3-11; J.-F. Brisson: Les pouvoirs de sanction des autorités
de régulation et l'article 6 § 1 de la Convention européenne des droits de l'Homme, AJDA 1999, pp.
847-859.
Endnote 25:
See P. Laroque: Contentieux social et juridiction sociale, Droit social, 1954, pp. 271-280.
Endnote 26:
The dispute over bananas now before the WTO or the definition of (cocoa-free!) chocolate adopted
by the European Union are good examples of this kind of decision which are more evocative of techno-crime than the exercise of authority.
Endnote 27:
See Les nouveaux visages de la subordination, Droit Social 2000, 131-145
Endnote 28:
See for the United States the report of the American Law Institute Principles of Corporate
Governance; for the United Kingdom the Code of Best Practice which resulted from the work of the
Cadbury Commission; and in France the Viénot and Pébereau reports. Cf a presentation of these texts
by A.Tunc: Le gouvernement des sociétés anonymes. Le mouvement de réforme aux Etats-Unis et au
Royaume-Uni, Revue internationale de droit comparé, 1994, vol. 1, pp.59-72; also N.Decoopman: Du
gouvernement des entreprises à la gouvernance, in La gouvernabilité, coll. wk. Paris, PUF, 1996,
p.105f.
Endnote 29:
See Y. Mény, La corruption de la République, Paris, Fayard, 1994 (?)
Endnote 30:
See M.Castells End of Millennium, Oxford, Blackwell, 1998, Fr trans. Fin de millénaire, Paris,
Fayard, 1999, p. 415. This theory is developed in the preceding volume of his trilogy on "the
information age": The Power of Identity, 1997, Fr trans. Fayard, 1999.
Endnote 31:
I draw this very tendentious characterisation of the political nature of these institutions from Jeff
Faux: Toward a Global "New Deal", paper for the conference on Work and Social Citizenship in a
Global Economy, WAGEnet, Univ of Wisconsin-Madison, November 2000.
Endnote 32:
Soc. 28 Nov. 2000, Semaine soc. of 11 Dec. 2000, to be published in Bulletin civil (obligation to
consult the works council about the launch of a new insurance product which is bound to affect the way
in which workers are paid).
Endnote 33:
See J.Calais-Auloy and F.Steinmetz Droit de la consommation, Paris, Dalloz, 5th ed. 2000, no 49 f.
Endnote 34:
On the application of these measures as regards the environment, see P.Monier: L'environnement
dans la jurisprudence de l'OMC, Les notes bleues de Bercy, no 186 of 1-15 Jul. 2000, and the much
more critical stance adopted by R. Howse and D. Regan: The Product/Process Distinction - An Illusory
Basis for Disciplining 'Unilateralism' in Trade Policy, European Journal of International Law 2000,
vol. 11, No. 2, pp. 249-289. This article could have important implications for the social field, placing
emphasis on the notion of "protection of the health and life of persons", the dynamics of which have
always informed the development of labour law (cf. "La dynamique du corps (protection physique et
transformations du droit du travail et de la sécurité sociale"), in Scritti in onore di Gino Giugni, Bari,
Caccuci, 1999, vol. 2, pp. 1621-1646)
Endnote 35:
Regarding environmental protection, see: Société française de droit de l'environnement Droit du
travail et droit de l'environnement, Paris, Litec, 1994, 153 p.
Endnote 36:
See C.Sabel, D. O'Rourke & A.Fung Ratcheting Labor Standards: Regulation for Continuous
Improvement in the Global Workplace, paper presented at the conference on Work and Social
Citizenship in a Global Economy, WAGEnet, Univ of Wisconsin-Madison, November 2000.
Endnote 37:
C.Sabel, D. O'Rourke & A.Fung, op. cit.
Endnote 38:
Le Monde, 18 Nov. 2000
Endnote 39:
Cass. com. 10 March 1998, Bull. civ. no 95; see J.-D.Bretzner: Le boycottage face à l'"impérialisme"
du seuil de sensibilité, D. 2000, Chr. 441
Endnote 40:
See already in this regard A. du Cheyron du Pavillon: Le boycottage, in Les activités et les biens de
l'entreprise, Mélanges J.Déruppé, Paris, Litec, 1991
Endnote 41:
CA Paris, 29 Feb. 2000, Dr. ouv. 2000, 143, commentary by G. Lyon-Caen
Endnote 42:
See in France the practical guide Les placements éthiques, published by the journal Alternatives
économiques, special issue, 2nd ed. 1999, 160 p.
Endnote 43:
See P.Ireland: Corporate Governance, Stakeholding and the Company : Towards a Less Degenerate
Capitalism? Journal of Law and Society, 1996, 287; S.Deakin & A.Hughes (dir.) Enterprise and
Community : New Directions in Corporate Governance, Cambridge, Blackwell, 1997.
Endnote 44:
See Ch. Craypo: The impact of Changing Corporate Strategies on Communities, Unions and Workers
in The United States of America, in S.Deakin & A.Hughes, op. cit. p.10 f.
Endnote 45:
T.Ghilarducci, J.Hawley, A.Williams : Labour's Paradoxical Interests and the Evolution of Corporate
Governance, in S.Deakin & A.Hughes, op. cit. p. 26.
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