 |
Work, Law and Social Linkages
by
Alain Supiot
Geneva, November 1999 |
 Opening Statement
Work, Law and Social Linkages
Debate
IILS PUBLIC LECTURE
"Work, Law and Social Linkages"
by
Professor Alain Supiot
Geneva, November 1999
Opening Statement
Padmanabha Gopinath
Counsellor to the Director-General, ILO
Director of the International Institute for Labour Studies
In his report to the International Labour Conference last June, the ILO's Director-General, Mr. Juan Somavia, proposed
that the ILO's primary goal for the next decade should be to promote opportunities throughout the world "for women and
men to obtain decent and productive work in conditions of freedom, equity, security and human dignity". This very day
the Governing Body is discussing the programme and the budget for 2000-2001 with a view to promoting this type of
work through four strategic objectives: fundamental rights at work, employment, social protection and social dialogue.
These plans will have a huge and wide-ranging impact on the direction taken in ILO policy and on the definition of its
future role. They mean that, in future, the ILO will have to adopt an integrated approach which looks at job quality as
much as job volume. It will have to implement social programmes and policies which are capable not just of promoting
employment, but also of taking the fate of all workers into account. It will also have to make progress on rights at work,
irrespective of whether the workforce is organized, and whether it is in the formal or informal economy, the formal or
informal sector and the traded or non-profit sector. Clearly, these operational implications of the concept of decent work
are likely to challenge traditional labour and employment policies and strategies.
The speaker we have the pleasure of hearing this afternoon is particularly well-qualified to talk about these issues.
Professor Alain Supiot, from the University of Nantes, is the author of a number of works on social politics and in
particular on rights at work and the evolution of labour legislation in the context of the economic, social and
technological changes. His publications are regarded as authoritative and have influenced the debate in this field in
Europe and far beyond.
For the ILO, whose goal is to develop this new paradigm of decent work and which has undertaken to analyze the links
between work, social protection and social dialogue, Professor Supiot's work is of direct practical interest.
The ILO traditionally deals with economic and social change by introducing legislation, but as Professor Supiot has
stressed, legislation is not an exact science. If we take labour relations, for example, we are inevitably aware of how
they are perceived by the social partners in various historical, cultural, economic and social contexts. Therefore, if we
apply incorrect paradigms when examining the changes that are currently taking place as a result of globalization, we
will obtain a distorted image of reality. Professor Supiot warns us of this risk. In preparing for the future it is essential to
ask the right questions now, while still holding onto fundamental values and principles.
Four essential points from Professor Supiot's work show the importance and relevance of all this for the ILO. First, the
debate on regulation and deregulation and on the conflict between the public and private sectors conceals a number of
problems: it tends to focus on the distinction between the market and the State and neglects the important question of
what is in the general interest. Second, we need a legislative framework which responds to all the needs of every
worker. There is still a lot to be done to cover all forms of paid work including self-employment and home work, as well
as all forms of unpaid work, including domestic work and voluntary work. Third, work has a public function and values of
general interest which tend to be overlooked because of the emphasis on its commercial value. Work is not just a
commercial asset, it is equally an expression of the individual as a human being; it is as much part of our social life as
of our material life. The latest developments have blurred the link between the markets and society and have reopened
the question of work and the individual at work. Finally, globalization does not weaken social linkages, but modifies
them. While technological change and greater capital mobility have meant that businesses are no longer the focal point
of labour and the community, the community is becoming the focal point of businesses and labour.
These four ideas which Professor Supiot has developed lay the foundations for a new paradigm and open up new fields
for labour and labour legislation in the 21st century.
Work, law and social linkages
Professor Alain Supiot
University of Nantes, France
This conference, entitled "Work, law and social linkages", is designed to stimulate discussion and debate in an
institution which has never before been so urgently needed on the world stage.
It has never before been so urgently needed because the paradigm which is currently gaining precedence around the
world is centred on the market and the market economy, and there cannot be a market without institutions to support it.
Thinking of the market as a link between individuals presents two types of problems which States have actually been
facing for the past two hundred years, but which now need to be tackled at global level.
The first problem stems from the fact that the process of the division of labour leads to both individualization and
interdependence. On the one hand, the more labour is divided, the more specialized it becomes and the more workers
have special skills which distinguish and separate them from everyone else. But on the other hand this specialization
means that everyone is more dependent on the work of everyone else. Hence the first big question, which Durkheim
raised a century ago and which is still as topical today: how can we control this dual trend towards individualization and
interdependence?
The second problem which the market has to deal with is how to reconcile the brief duration of market exchanges, in
particular the exchange of wages for labour, with the long duration of human life. Indeed, there would be no exchange,
were it not sustained by long periods required for education and human reproduction.
These problems have arisen because, from the very outset, the market economy destroyed the traditional forms of local
solidarity around which pre-industrial societies were organized. 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 westernized. The
destruction of social links based on geographical or occupational proximity appeared at the start of the 19th century as a
sine qua non of modernity. One of the founding actions of the French Revolution was to decree "the annihilation" of the
trade guilds (the famous D'Allarde Decree). Nothing could have been clearer or more radical. In England the process
was closely studied by the economist Karl Polanyi, who showed how the introduction of the market as a form of social
organization was accompanied by the destruction of the system of local social assistance known as the Speenhamland
system.
However, the social problems presented by the division of labour could not go unanswered for long. As the traditional
links of solidarity unravelled new links were woven and new forms of solidarity appeared, but at national rather than
local level. In the world order which emerged from the industrial revolution, the nation-states became the cornerstone of
social organization and the guarantee of social cohesion. Of course, the way in which States guaranteed social
cohesion varied enormously from one country to another: they could either organize their own system of social security
and rely on collective bargaining to organize labour relations, such as in the United Kingdom after 1945, or else quite
the reverse, as in France, they could strictly codify labour relations and hand over the management of social security to
the social partners. But in every case it was the State which ultimately had the power to decide on the legal and
institutional framework needed for the labour market to operate. This is how national models came to be developed for
organizing labour relations.
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 globalization and by relocalization and reterritorialization.
Globalization and localization are the two inseparable faces of world economic strategies that are based on the
exploitation of local competitive advantages. This dual trend towards globalization and localization 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. 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.
In order to study what has become of the institutional frameworks behind the labour markets, we need to review them
individually. In the time I have available I shall mention just three of them, which are probably the most important: first of
all, the State - the nation-state which I described as the cornerstone of rights at work; then what we call the
intermediary groups: businesses and trade unions; and finally individual employment status: the job. In conclusion I
shall attempt to situate the place occupied by law and the institutions in the current globalization process.
Public authorities: States and international organizations
Let me start by saying a few words about how the State has been transformed. The State is not an eternal, universal
institutional form, it was invented in the West in medieval times. People then conceived the State as a super-person or
as 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 called into question in the 19th
century by the poverty resulting from the birth of the industrial revolution and the political and trade union struggles
which ensued.
This challenge to the legitimacy of the State triggered two types of reaction in practice, corresponding to two different
types of ideology. The first, that of the totalitarian ideologies, resulted in the State being regarded 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 reaction was a catastrophic failure.
The second reaction, 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 claimed to guarantee their
well-being. The State thus became the servant of people's welfare 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 organized by law. But in every case mandatory rules were included in the
contract of employment and formed the basis for national labour legislation.
The invention of the welfare state enabled the dual trend towards individualization and interdependence, which I
mentioned earlier, to be controlled. But at the same time as controlling it, it also accelerated it. 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.
The welfare state has also given rise to new ways of producing law. In the traditional concept of the State there are two
levels at which law is written. One is legislation, which is the deliberated, unilateral expression of general will, and the
second is the contract, which is the negotiated, bilateral expression of individual interests. The welfare state has
encouraged the emergence of a third level, in the form of collective bargaining. Since they alone cannot decide what is
in the general interest in increasingly complex societies, the public authorities involve representatives of collective
interests, primarily the employers' organizations and the trade unions, in reaching such decisions. Thus, a new type of
quasi-legislative collective bargaining is being developed which is taking some social powers away from parliaments.
This trend, which we might call neo-corporatist - a term I have borrowed from American political science - has meant
that the State is no longer outside the social domain, and the order of precedence between the general interest and
individual interests has become blurred.
Today, globalization is further blurring the hierarchy of interests on which the traditional theory of the State was based.
It 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 States, which are an expression of local solidarities acceptable only to the
extent they do not interfere with the free movement of goods and capital. Against this neo-liberal background,
competition law operates as constitutional law on a global scale. But competition law cannot serve as constitutional law.
International commercial and financial legislation and institutions were not designed to deal with the social problems
they cause by means of reducing the leeway available to States.
Neo-corporatism and neo-liberalism have combined in practice to make the State a mere tool which is subject to logics
which transcend it, such as those of the economy at international level or society at domestic level. Thus it is that
States, which remain prime legal actors 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 bodies and the informal economy which provides a living for many of their nationals, and 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 maximizing 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 people to make sense of their own existence, give them a place in society and enable them to
express their own talent. Professional identity - carrying out 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 their 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
destabilize States even more quickly and paves 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 saps
confidence, encourages protectionism and thus jeopardizes the economic globalization of which it is a product.
There is currently a reaction to this with the search for new types of public action and new forms of "regulation"
designed to restore the public authorities to their role of guaranteeing the long-term future. On the one hand, the public
authorities are still in charge of public, non-quantifiable goods which are not price-coordinated (health, education, the
environment); but on the other, the economy and society have grown too complex for the public authorities to be able to
manage these public goods themselves. The neo-corporatist methods adopted to find a way out of this dilemma serve
no purpose since public goods cannot be reduced to a bargaining chip between interest groups. The trend today,
therefore, is to move from a State which manages the social domain to the State as guarantor. This redefinition of the
role of the State, and of the public authorities more generally, is expressed in two ways. First, the State no longer tries
to govern everything itself. Instead of being directly involved in negotiations or consultations according to the neo-corporatist model, it confines itself to establishing the procedures for conducting such negotiations. Second, however, it
also defines the general principles which the negotiations should help to implement. So the State both withdraws from
the management of social issues, and at the same time its role as the guarantor of public goods is reaffirmed and
restored.
These new forms of "regulation", therefore, certainly do not mean that the State is returning to its role as policeman or
that labour relations are simply being left to the private sector. Instead they have resulted in a policy of "government by
objectives" in which it is left to the social partners to decide how to achieve them. If such a policy is to succeed, the
difficulty lies in defining objectives whose justification is universally recognized. The social partners can be involved in
defining them (which is what happens with the legislating negotiations introduced under the Maastricht Agreement on
social policy, for example). The objectives can also be justified, and this is probably the most innovative aspect of these
new forms of "regulation", on the basis of what is assumed to be expert knowledge. This "knowledge" is then
institutionalized by setting up regulatory authorities which are also independent of the State and the social partners. The
establishment of the European Commission by the Treaty of Rome was one of the first and most striking manifestations
of the development of these independent authorities. Many others have since sprung up at national level (in particular
regulatory authorities set up in connection with the privatization of public services) and at international level (in particular
monetary authorities, such as the European Bank, or commercial authorities such as the WTO).
In actual fact, the question today is whether States will manage a further metamorphosis along the lines of what they
achieved with the welfare state, or whether they are fated to make way for new forms of organizing social linkages.
Intermediary groups: businesses and trade unions
The second institutional level that I wanted to discuss are the intermediary groups and, first and foremost, businesses
and trade unions. The old guilds were swept away in the industrial revolution, but since there cannot be a lasting
institutional vacuum between the State and individuals, new actors emerged to take their place on the legal stage.
Large modern undertakings were the first to be given a legal identity with the establishment of company law. Labour law
transformed the former trade-guilds into unions, initially trade-based, later industry-based, and this led to the
emergence of a collective sphere where labour relations developed, the existence of which is guaranteed by the ILO
Conventions on freedom of association.
Just as the welfare state took different forms depending on the country concerned, so these collective labour relations
vary widely from one country's legal system to another. But beyond that diversity the collective representation of
workers has always basically been modelled on how the employers' economic power has been organized. The pyramid
model of the large industrial firm with its integrated hierarchical structure covering the entire process of product
manufacture was mirrored by the organization of all workers involved in that manufacture into industrial unions,
eliminating professional identities based on trades. Whether or not the firms were organized 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 organized.
The ways in which work has been organized 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 destabilizing effects on businesses as on States. The difference between States and
businesses has less to do with structure than with reference. The State's reference is to qualitative, supra-patrimonial
values; it is responsible for people's destiny and it takes the long-term, lifetime view. A business' reference is to
quantitative, patrimonial 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 have found it impossible to take all decisions at the top, and have
had to invent new ways of governing people. Like States, they have faced 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. 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 industrial model of the large, integrated company such as Chaplin depicted in Modern Times or Fritz Lang in
Metropolis is tending to give way to a new model: the network, a polycentric structure in which every member is
autonomous but at the same time has to combine with everyone else in the interests of the whole. For a sociologist or
economist the network appears to be something very modern, but a lawyer cannot help but think of vassals in a feudal
structure, where free men placed themselves at the service of their overlord. This is exactly what firms are looking for in
the new forms of work organization. Subordination is no longer enough, firms no longer just want workers to obey; the
demand for product quality and reduced costs means that workers are expected to behave as if they were independent
and responsible. On the other hand, firms are becoming more dependent on each other. Large firms, now focussing on
their main trade, have to keep a close eye on the quality and punctuality of the products and services provided by their
suppliers or sub-contractors, since the quality of their own products depends on them.
Two trends provide evidence that new methods of government are being sought in labour law. In labour law the idea of
legal subordination is gradually giving way to the idea that workers are independent in achieving the objectives they
have been set; in commercial law, however, legal independence is being weakened to make businesses subject to the
collective disciplines of production or distribution networks (take independent farmers, for example, who are being
forced into the hands of the large agri-foodstuffs firms by integration contracts). But autonomy in subordination and
allegiance in independence are simply two complementary aspects - within businesses (intranet) and outside them
(extranet) - of the same approach to network organization.
These developments challenge the conceptual categories used in labour law. This is particularly true of the concepts of
"subordination" (the clear dividing line between employment and self-employment is becoming blurred), "employer" (the
employer's decision-making powers are being watered down in groups and networks), "branch" (firms are focussing on
their main trade and contracting out other activities, so that the collective status is geared to the trade and the individual
scope of branch agreements is reduced), "job" (wage-earning status is becoming fragmented with the decentralization
of collective bargaining and the development of peripheral employment: insecure jobs, part-time work, etc.), and
"collective agreement" (whose meaning is changing as the functions of collective bargaining are extended).
Worker representation cannot avoid these challenges, and one of the main questions facing trade unionism today is
how to adapt to the new ways in which businesses are organized. It probably cannot avoid the network approach either.
The pyramid structure of mass trade unionism would be replaced by an approach which coordinated various types of
representative units located as near as possible to the genuine centres of employer decision-making (not just
businesses and branches any more, but also 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 the skilled male workers employed by large companies, but also those of workers in insecure or
part-time jobs, women, the unemployed, those employed by sub-contractors, those who are semi 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 extends to issues of general interest with the development of
negotiation on jobs, the organization of working hours and the development of labour law (legislative negotiation).
Individuals: individual professional status
I come now to the third institutional level at which labour relations are structured: the worker's individual status. In the
welfare state structure this status took the form of an individual job. Having a job gives individual workers protection on
a number of levels as a result of the combination of labour law and social security: protection against life's risks
(sickness, old-age, etc.) and protection against risks at work (industrial accidents, redundancy, unemployment, etc.). In
legal terms this protection is derived from the inclusion, whether statutory or collectively agreed, of compulsory rules in
all employment contracts. Employment signifies a fundamental trade-off between subordination and security. With the
invention of jobs, workers who used to offer work on the market have become job-seekers, people who are looking for
employment status. In practice this employment model has never extended to all workers. There have always been
those who are "excluded" from employment. But it has become a reference indicator: it is by the national employment
model, in other words the existence of a stable contract bringing with it various social rights, that people judge their
professional status.
As you know, this employment model is being challenged by the same political, economic and technical developments
that are challenging the structures of the State and the organization of the intermediate groups. The wage-earning world
is becoming fragmented and, above all, the number of those excluded from employment has grown continually, both the
unemployed (who may have social rights, but no work) and the working poor (who have work, but no social rights). The
figures are disputed. We do not know whether it is 25% or 30% of the population of the most highly developed countries
who are outside the employment model. In the less well developed countries, where there is a thriving informal
economy, only a minority of the active population have access to employment. The lasting and widespread
establishment of situations which are "atypical" to our way of thinking should encourage us to question these
frameworks. Employment can no longer be the paradigm within which the working relationship should be envisaged,
since it forms only part, albeit a very important part, of a much more complex picture which must be viewed as a whole.
Looking "beyond employment" is therefore by no means tantamount to announcing the imminent end of the wage-earning status (which will be with us for many years to come); what it does represent, however, is an attempt to detach
ourselves from the conceptual categories inherited from the industrial society in order to understand today's world.
In order to do this, we need to take the new methods of work organization mentioned earlier as the basis. Instead of
stable, integrated, extremely hierarchical collective methods of organization, we are increasingly dealing with flexible
procedures for coordinating individuals. New forms of man-management are being invented in firms which, as I said,
are designed to subjugate people without depriving them of the element of freedom and responsibility that makes them
conscientious, inventive or productive. Hybrids of servitude and freedom, equality and hierarchy are being developed
which have caught labour law structures off guard.
These developments are neither good nor bad in themselves. They could turn out to be the best or the worst thing that
could happen, depending on how we manage them. On the one hand, they are fraught with new forms of individual
alienation. Traditional employees could at least just obey and otherwise keep their dignity. They were not expected to
give their heart, honour, intelligence or creativity to the company, yet this is now what is being asked of them, with the
risk that they will experience a level of personal dispossession unprecedented in the industrial model. But on the other
hand, forms of organization which support human freedom and autonomy are also an opportunity to emancipate
workers, and may thus help to liberate work in ways which the trade union movement has long pursued.
Everything will depend on our ability to cope with the current developments, which, in legal terms, means that we will
have to develop conceptual categories that are in keeping with this emerging world. This is what the research group that
the European Commission asked me to head has been trying to do, coming up with the concepts of "individual
professional status" and "social drawing rights". Before discussing these concepts, I would stress that they are intended
to take account of developments that are already happening in the legal systems of all the countries of Europe. So they
are not simply abstract ideas removed from actual developments in positive law, nor are they directly applicable legal
categories; they are keys to understanding current transformations in labour law and reference points for measures to
be taken.
The concept of individual professional status is based on the concept (which is difficult to translate into English, I fear)
of individual civil status, in other words all the rights which protect individual identity (name, family, nationality, etc.).
Work, the individual contribution which everyone makes to the life of the community, is one dimension of human
identity. To use the felicitous expression coined recently by your organization, this means that every man and woman
should have the opportunity to do "decent work".
In the employment model the contract of employment is the only way of gaining access to decent work. Working for
someone else gives people a professional identity and the various securities which enable them to live. The fact that
this model is becoming out-dated is clear from various aspects:
- First of all, it is based on a very narrow definition of work: work that is bought and sold on the market, the only sort of
work included in statistics. On the other hand, in the employment model professional identity is not granted to
anyone (particularly women) whose work is outside the commercial domain and consists of bringing up children,
housekeeping or looking after relatives, or even obtaining education or training. I would stress this point, because the
statistical bias that I mentioned blinds us to this obvious fact: that the market economy could not exist without this
unpaid, non-commercial work which is a requirement of human reproduction (education and training) and which,
unlike paid employment, could not be interrupted without life itself being interrupted. In the traditional concept of the
family on which the welfare state was based, this sort of work does not form part of professional identity; unless she
actually has a job, a woman who does the housework and brings up her children does not have a professional
identity. In social law she exists only through her husband, who is recognized as a "worker", and the only rights she
has are those which she "derives" from her matrimonial or family status. This failure to recognize non-commercial
work alienates men and thus encourages discrimination based on sex against both working women and women who
stay at home;
- Second, the employment model is based on a linear, uniform concept of a working life which starts when you leave
school and continues uninterrupted until you reach retirement age. This linear model was very much in keeping with
the requirements of large industrial firms, which needed considerable numbers of employees to fill stable, clearly
defined posts. Now that firms are focussing in on their main trade and farming out their other operations, and now
that increased competition and rapid technical change are continually challenging accepted opinions and knowledge,
the linear model no longer reflects the actual situation of many workers and, on the contrary, helps to divide the
world of work into 'insiders' in secure jobs which give them access to training, and 'outsiders' whose often insecure
and poorly paid jobs do not give them the chance to adapt to changes and are therefore particularly vulnerable to
economic fluctuations;
- Third, the employment model is based on subordination: workers are given the security of employment in exchange
for giving up their independence. The model is not in keeping with the new forms of work, in which workers are given
considerable autonomy in exchange for meeting the targets they are assigned. The problem, therefore, is no longer
just in arming workers against the foreseeable risks that life brings, but also in giving them practical ways of enjoying
this freedom and taking on these new responsibilities. The status of worker, which used to be based on two pillars -
dependence and security - now needs three: freedom, security and responsibility. All three are necessary, because
if freedom necessarily involves responsibility, responsibility in turn involves security, without which there cannot be
freedom of action. If one of these three elements is missing, then we must either make workers responsible for their
own fate, for which they have not been afforded the necessary rights, or else we must allow certain highly protective
regulations (combination of employment contract and social protection, guaranteed jobs for life) to create workers
who are free and without responsibility.
The fact that the employment model is becoming obsolete has led to the appearance of new rights in positive law.
There are different types of rights on different scales, but they create the framework for a new way of looking at the
individual status of work and they reveal the emergence of what we referred to as "individual professional status". This
professional status is made up of all the rights which are common to all forms of work (and are no longer confined to
paid employment), or which make it easier to exercise individual freedoms at work or to transfer from one employment
situation to another. The difference between this professional status and employment is that wage-earning status is
always embodied in a contract of employment, so that its existence and stability depend on the existence and stability
of that contract; however, professional status includes periods of employment in a more comprehensive system of
social rights; it derives its existence from the rights acquired during periods of employment, but also from the rights that
may be acquired in other employment situations (self-employment or non-professional employment) or guaranteed by
third parties (the State, insurance companies, joint bodies, etc.) For example, in an employment system pure and
simple, any rights to vocational training which accompany the wage-earning status are not granted to the unemployed,
the self-employed, those in insecure jobs, etc. All the statistics show that continuing vocational training credits do not go
to those most in need of such training in order to secure their position on the labour market, but the vast majority go to
those who are already the most highly trained. With the 'professional status' approach, however, the right to continuing
vocational training is regarded as a guaranteed right for everyone, regardless of their position on the labour market.
In actual fact professional status began to appear alongside the social security systems, whose aim was precisely to
ensure that workers' social rights continued even if their position on the labour market was interrupted. The search for
continuity has now permeated labour law itself, and is no longer confined to protecting against life's risks, but aims to
enable every worker in practice to be free to pursue their professional life - to choose, for example, to spend more time
with their children at a certain period of their life, or to retrain, set up their own business, improve their skills, etc.
In addition to employment and wage-earning status, individual professional status brings a new type of rights which are
now known as "social drawing rights". This concept covers all the mechanisms that have now been invented to create
solidarity, not just against risks, as in the traditional welfare state, but solidarity in exercising freedoms. These new
rights are proliferating, yet we do not really know what their scope is. Most often they are about allowing workers to take
time away from the constraints of their current professional activity in order to devote themselves to another socially
useful activity, such as trying to set up their own business, looking after children or elderly parents, doing voluntary
work, working for a trade union or association, taking a sabbatical, undergoing vocational training in order to keep up
with developments in technology and knowledge or to improve skills or retrain. What these are all really about is
exercising freedoms that have long been formally recognized (freedom of association, freedom to belong to a trade
union, freedom to set up a business, freedom to work, right to a family life, etc.), but which take time and money to
exercise in practice. They therefore exclude those who cannot afford the luxury of losing their job and living without
professional income.
So freedom does not just have its positive side, which is the one we always see. It also has a negative side, a cost, if
only in having to account for how we use it. Freedom exposes us and places obligations on us. This also explains the
durability and stability of political or social systems which provide security for their members at the expense of their
freedom; such systems can count on fairly resigned support from their weakest members, who are at least given
guarantees of survival. The strength of the welfare state has been in finding a certain balance between freedom and
security; by sacrificing their freedom at work, workers were assured of a certain level of economic security, while still
retaining their freedoms outside work. But this balance is threatened once attempts are made to promote individual
freedom at work. Such "liberation" imposes new responsibilities on workers and could deprive them of the securities that
come with employment. This is why new forms of security had to be invented which are no longer seen as being in
return for subordination, but as supporting freedom, as active securities which accompany workers' initiatives rather
than restricting them. The approach is the same as with the prevention of industrial accidents today, where passive
protection, which restrains the worker's body and makes him or her subject to the operation of the machine (such as
restraining a worker's hands to prevent them from coming into contact with the blade of a guillotine, for example), is
replaced by active safety devices which make the operation of machines subordinate to their safety for the workers
(such as photoelectric cells which prevent the guillotine from cutting the worker's hands).
It was this need for securities, which form an integral part of exercising a freedom, that led to the creation of social
drawing rights. They may have extremely wide-ranging aims, but they always have a similar structure. Instead of the
worker alone having to face the costs that are inherent in exercising a given freedom, the worker has the right to
liberate collective funding for that purpose up to a certain level. The funding is provided by various sources which differ
according to the aim of the drawing right concerned: by the State; by firms; by trade unions; by social security; by
professional bodies; by insurance companies; by bodies which will benefit from the worker's initiative, etc., not forgetting
the workers themselves, of course, who can always provide their own funding (this is one of the aims of fixed-term
savings accounts). The loan may be supplemented by technical assistance where this can help the worker's initiative to
succeed (setting up in business, for example). Social drawing rights thus mutualize the risks involved in exercising a
freedom. This is what distinguishes them from social security rights, which only provide protection against involuntary
risks. It also explains why these rights are subject to two limits: the quantitative limit of the finance provided, and the
qualitative limit of the social usefulness of the initiative to be financed. These twin limits, together with the possible co-funding of the initiative by the workers themselves, ensure that the individual responsibility of the person holding the
right is not watered down. The reason why social drawing rights are proliferating is because collective solidarity and
individual responsibility can be linked in this way.
Conclusions: law and globalization
Having given you this brief overview, I should like to end with a few more general observations on the position of law in
the processes of "globalization".
For the last two hundred years we have been dominated by an economic ideology that has blinded us to the importance
of law and institutions in the construction of individual and collective identities. Let me tell you a short anecdote to
introduce this point. In the early 1990s I was asked to go to Moscow to explain to a conference of Russian economists -
this was just after the break-up of the Soviet Union - what a contract of employment was. It proved to be almost
impossible, because although I was dealing with eminent intellectuals, they were not accustomed to the contract
culture. So it was completely misguided and a waste of money to rush over countless economic experts to convert
Russia to a market economy, because you cannot have a market without a contract, and you cannot have contracts
without an authority which is capable of ensuring that they are complied with. Unless these conditions are met, the
West's economic teachings can only be seen as an apology for the law of the strongest and only serve to conceal
embezzlement and other organized crimes.
We must not forget that the contract, like the State, is not a timeless and universal concept. It is a historically and
culturally rooted way of conceptualizing links between people. It is a concept that was born in the West, the offspring of
the meeting between monotheism and Roman law. Roman law gave us contracts in all their diversity, and monotheism
gave us the idea of a universal guarantor for promises given. It was the meeting of these two cultures in the Christian
West that gave us our universal and abstract notion of 'contract' and thus the universal and abstract notion of 'market'.
Since law became secularized before the industrial revolution it has been the States which have fulfilled the role of
guaranteeing contracts. They have enabled the market to be seen as a place where calculation brings harmony, a
uniform space where abstract people trade abstract things, and where the same treatment will be given to all. The
States have been the cornerstone of the market economy, both in guaranteeing the mandatory power of contracts and
in guaranteeing the value of currency.
The mechanics of free trade put us in a paradoxical situation. The "globalization" of the market economy is undermining
not only the States, but also the very pillars on which that economy was based. If it is not to collapse altogether,
institutions are needed either locally or internationally to take over from the States. This is what the European
Community has been trying to do for the last 40 years, and more recently it was the aim of giving the World Trade
Organization its arbitration powers at global level. However, the effectiveness of these international institutions depends
on their ability to inspire confidence, and they will not inspire confidence as long as they do not have the means to
influence not just the movement of goods, but also the conditions under which workers produce them and the natural
source from which they are drawn. So we are still a long way from the prospect of a global legal system which is held
together by respect both for human rights and for the market. On the contrary, there seems likely to be a proliferation of
entrenched, specific institutional references, bringing the risk of violence and conflict.
If there is one thing that the collapse of this century's key ideologies has taught us, it is that the future is not set in
stone. It is up to us to write it and, in doing so, we must not underestimate the role of law and institutions. Law and
institutions are not just the reflection or instrument of what has already been thought; they are also the places where
reasonable ideals for the future are recorded. When we put forward the principle of equality for men and women and
when we give this principle a legal value, we cannot say that the law is not keeping up with reality. On the contrary, the
law is ahead of reality, it is setting a target for our aspirations, and I think it is that sort of target that we need in labour
law. We need laws and institutions that show us a utopian image of work which reconciles freedom, security and
responsibility. And I believe that utopian image is a reasonable one. It is certainly something we can come close to, and
I think that an organization such as yours has an essential role to play here.
The concept of individual professional status merely systematizes, albeit optimistically, phenomena that already exist.
We could say that with the invention of social security we left the cosy world of employer and worker behind. As soon as
social security systems were introduced a third party entered the employment relationship to ensure continuity
stretching beyond the hazards of professional life. But as I said earlier, social insurance only came into play when a
small number of social risks occurred, whereas the new arrangements that are now appearing are designed to run
alongside the exercise of certain freedoms. The arrangements already exist in our legal systems. The problem is that
they currently benefit only a fraction of workers, those on whom the arrangements are focussed, and not others. But
we can take these objectively identifiable changes as the basis on which to sketch out a possible future. The last thing
experts can do is tell the future, because the future will be made by employers, trade unionists, workers, everyone who
is involved in the action. What experts can do is to sketch out possible futures from observing the present. And on that
basis we can say that the idea of long-term professional status acting as a basis for temporary contractual commitments
is already happening. Current labour law, 20th century labour law in fact, has not come out of the heads of experts,
except perhaps in Germany to a small extent, it has emerged from the actions of employers and above all workers, and
from negotiations with employers. I think the same will be true of labour law to come, which will depend on the ability of
those concerned to take collective action and to negotiate.
On the subject of collective representation, what are we seeing emerging in the Community, for example? Different
forms of representation at multinational group level, not bottom-heavy branch-level negotiations. Transnational group
negotiations. The imitation effect is obvious here: the negotiations mimic the new ways in which businesses are
organized.
Debate
Question - We have a proverb which says "If you give your word, you must keep it". In my opinion constitutions, laws
and society itself are all covered by the term contract. We have individuals and groups of people, and the role of the
State is to guarantee peace, security and freedom. The market economy and globalization have meant that only the
fittest can survive. So who is going to do something about it? The States, banks, the market economy or people? Who
is going to guarantee the three aspects of peace, security and freedom?
Q. - My question refers to what the previous speaker from Nepal said. We talk about God, the State, those who
guarantee certain things. We try to define what the State's obligations are in constitutions, for example. It all depends
on the country. Sometimes the guarantees are not effective when it comes to the minimum wage, housing, social
security, etc. There is also the problem of debt, so there are a number of difficulties from an economic point of view.
The ILO, with its own standards is in some sense also like a State which can legislate. But if there is legislation, we do
not know whether it is being applied in practice. In some countries there is legislation and then enforcement is weak.
Some countries ratify the ILO legislation and some do not, so there are varieties and contradictions.
Mr. Supiot - Thank you for those two questions, which give me an opportunity to be more specific. The first speaker
said that "only the fittest can survive on the markets", and this is indeed the ideology before us. It is social Darwinism,
the survival of the fittest. It seems to me that such an ideology is contrary to a number of fundamental rights which I
regard as the heritage of our civilization. You will no doubt say that this is a very fragile dividing line, particularly when
people are expected to live under inhuman conditions. So what this ideology leads to is violence. The problem is that,
because we cannot imagine any other possible world, this violence is entirely destructive, as we are beginning to see in
the inner cities, or else it is reflected in identity crises and the fragmentation of society into small groups bound together
only by their hatred of each other. If we are not intelligent enough to realize what people need, and to create the
conditions for everyone to have a decent life, there will come a time when people will take it upon themselves to tell
those that govern them, and then there will be a very high price to pay. This is why I think that one of the tasks of
institutions like yours, or of the universities, has to be to try to ensure that the appropriate institutional frameworks are
put in place as painlessly as possible.
The second speaker pointed out that not all States can be put on the same footing. I entirely agree with you, and I do
not want there to be any misunderstandings here. I gave a brief history of the development of the concepts of State and
contract, and I said that they were Western inventions in the medieval period, by which I meant that contrary to what
people in the West think, they are not universal categories. They are exports, some of the most important exports there
have ever been, which have acclimatized fairly well to local conditions. So my main question is whether the State has
come to the end of its life and will be replaced by new ways of organizing social linkages. In my speech I mentioned
what there was before the State, in other words feudal links, and I said that the whole debate on networks is, legally
speaking, feudal in style. So I am not trying to defend one institutional form rather than another, but to stress the
importance of choosing the right institutions to cope with the problems facing us today.
Geneva, November 1999
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