The Labour Constitution: The Enduring Idea of Labour Law (Oxford Monographs on Labour Law)

By exploring different approaches to the study of labour law, this book re-evaluates how it is conceived, analysed, and criticized in current legislation and policy. In particular, it assesses whether so-called 'old ways' of thinking about the subject, such as the idea of the labour constitution, developed by Hugo Sinzheimer in the early years of the Weimar Republic, and the principle of collective laissez-faire, elaborated by Otto Kahn-Freund in the 1950s, are in fact outdated. It asks whether, and how, these ideas could be abstracted from the political, economic, and social contexts within which they were developed so that they might still usefully be applied to the study of labour law. Dukes argues that the labour constitution can provide an 'enduring idea of labour law', and an alternative to modern arguments which favour reorienting labour law to align more closely with the functioning of labour markets. Unlike the 'law of the labour market', the labour constitution highlights the inherently political nature of labour laws and institutions, as well as their economic functions. It constructs a framework for analysing labour laws, labour markets, and institutions, to allow scholars to critique the current policy climate and, in light of the ongoing expansion of the global labour market, assess the impact of the narrowing and disappearance of spaces for democratic deliberation and democratic decision-making on workers rights. Exploring Different Approaches To The Study Of Labour Law, This Book Examines Different Ways Of Conceiving Of The Subject And Of Describing, Analysing, And Criticizing Current Legislation And Policy In The Field. In Particular, It Assesses The Validity Of The Suggestion That 'old Ways' Of Thinking About The Subject Have Become Outdated. Detailed Consideration Is Given To Two Such Old Ways: The Idea Of The Labour Constitution, Developed By Hugo Sinzheimer In The Early Years Of The Weimar Republic, And The Principle Of Collective Laissez-faire, Elaborated By Otto Kahn-freund In The 1950s. It Asks Whether, And How, These Ideas Could Be Abstracted From The Political, Economic, And Social Contexts Within Which They Were Developed So That They Might Still Usefully Be Applied To The Study Of Labour Law. The Central Argument Of This Book Is That The Labour Constitution Can Be Developed So As To Provide An 'enduring Idea Of Labour Law', And This Is Constructed Against A Critique Of Modern Arguments Which Favour Reorienting Labour Law To Align More Closely With The Functioning Of Labour Markets. As Compared With The Posited 'law Of The Labour Market', The Labour Constitution Highlights The Inherently Political Nature Of Labour Laws And Institutions, As Well As Their Economic Functions. It Provides A Framework For Analysing Labour Laws, Labour Markets, And Labour Market Institutions, Which Does Not Limit The Capacity Of Scholarship In The Field To Retain Its Critical Edge. It Focuses Our Attentions On Important Questions, And Important Fields Of Enquiry: On Questions, Not Least, Of The Consequences For Workers Of The Narrowing And Disappearance Of Spaces For Democratic Deliberation And Democratic Decision-making As Markets Continue To Expand.-- Hugo Sinzheimer And The Economic Constitution -- The Labour Constitution In The Nation State : Germany And The Institutionalization Of Codetermination -- A Labour Constitution With The State? : Otto Kahn-freund And Collective Laissez-faire -- From Collective Laissez-faire To The Law Of The Labour Market -- The Labour Constitution Of The European Union : The Social Dialogue -- A Plurality Of Labour Constitutions? -- Labour Law Or The Law Of The Labour Market? Ruth Dukes. Includes Bibliographical References (pages 223-238) And Index. Exploring different approaches to the study of labour law, this book examines different ways of conceiving of the subject and of describing, analysing, and criticizing current legislation and policy in the field. In particular, it assesses the validity of the suggestion that 'old ways' of thinking about the subject have become outdated. Detailed consideration is given to two such old ways: the idea of the labour constitution, developed by Hugo Sinzheimer in the early years of the Weimar Republic, and the principle of collective laissez-faire, elaborated by Otto Kahn-Freund in the 1950s. It asks whether, and how, these ideas could be abstracted from the political, economic, and social contexts within which they were developed so that they might still usefully be applied to the study of labour law. The central argument of this book is that the labour constitution can be developed so as to provide an 'enduring idea of labour law', and this is constructed against a critique of modern arguments which favour reorienting labour law to align more closely with the functioning of labour markets. As compared with the posited 'law of the labour market', the labour constitution highlights the inherently political nature of labour laws and institutions, as well as their economic functions. It provides a framework for analysing labour laws, labour markets, and labour market institutions, which does not limit the capacity of scholarship in the field to retain its critical edge. It focuses our attentions on important questions, and important fields of enquiry: on questions, not least, of the consequences for workers of the narrowing and disappearance of spaces for democratic deliberation and democratic decision-making as markets continue to expand.-- Provided by Publisher Cover Series The Labour Constitution Copyright Dedication Contents List of Abbreviations 1 Introduction The Idea of Labour Law The Idea of the Labour Constitution Labour Constitution, Collective Laissez-Faire, and the Law of the Labour Market 2 Hugo Sinzheimer and the Economic Constitution Introduction Labour Law as the Law of Dependent Labour The Economic Constitution State and Autonomy Conclusion 3 The Labour Constitution in the Nation State: Germany and the Institutionalization of Codetermination The Labour Constitution of the Weimar Republic The Labour Constitution of the Federal Republic The Postwar Labour Constitution in Decline Conclusion 4 A Labour Constitution Without the State? Otto Kahn-Freund and Collective Laissez-Faire Introduction Collective Laissez-Faire Labour Law and the British State: 1890s to 1950s Conclusion 5 From Collective Laissez-Faire to the Law of the Labour Market The End of Consensus Towards a Law of the Labour Market The Labour Market and the State Conclusion 6 The Labour Constitution of the European Union: The Social Dialogue Introduction Maastricht and the Constitutionalization of the Social Dialogue Paris and Rome Rome to Maastricht The Question of Autonomy Conclusion 7 A Plurality of Labour Constitutions? The Question of Harmonization Upward Harmonization of National Labour Constitutions? Labour Rights as Fundamental Rights: A Defence against Negative Harmonization? Conclusion 8 Labour Law or the Law of the Labour Market? Introduction Approaches to Labour Law Scholarship Reassessing the Old Approaches Bibliography Index