Ruth Dukes is Professor of Labour Law at the University of Glasgow, UK. Her research interests lie in the fields of labour law, labour history and employment relations. In 2010, she was awarded the Modern Law Review's Wedderburn Prize for her article 'Otto Kahn-Freund and Collective Laissez-Faire: an Edifice without a Keystone?'. In 2011/12 she was an Early Career Fellow of the UK's Arts and Humanities Research Council and a MacCormick Fellow at the University of Edinburgh. Her monograph, The Labour Constitution (OUP 2014) was runner up for the SLSA Socio-Legal Theory and History Prize 2016. She is a member of the Executive Committee of the Institute of Employment Rights. Address: Glasgow, United Kingdom
Drawing on the work of Max Weber, this paper considers the utility of an approach to the study of... more Drawing on the work of Max Weber, this paper considers the utility of an approach to the study of labour law, which it calls the economic sociology of labour law (ESLL). It identifies the contract for work as the key legal institution in the field, and the primary focus of scholarly analysis. Characterising the act of contracting for work as an example of what Weber called economic social action oriented to the legal order, it proposes that Weber's notion of the labour constitution be used to map the context within which contracting for work takes place. And it argues that, in comparison to traditional socio-legal approaches, ESLL has the significant advantage of allowing for account to be taken of the individual and commercial, as well as the social and legal, elements of contracting for work.
This is the author's response to a book symposium on my 2014 monograph, The Labour Constitution: ... more This is the author's response to a book symposium on my 2014 monograph, The Labour Constitution: the Enduring Idea of Labour Law. The symposium includes contributions from Karl Klare, Judy Fudge, Michael Fischl, Emilios Christodoulidis and Guy Mundlak. These contributions were first presented at the LLRN2 Conference in Amsterdam in 2015, and are published now to mark the new paperback edition of the book (December 2017).
An extended case commentary on the English Court of Appeal's decision in the case of PDAU v Boots... more An extended case commentary on the English Court of Appeal's decision in the case of PDAU v Boots the Chemist, which considers at length the scope of the right to collective bargaining protected by Article 11 of the European Convention on Human Rights.
This short piece introduces a special issue of Social & Legal Studies on the topic Labour Laws an... more This short piece introduces a special issue of Social & Legal Studies on the topic Labour Laws and Labour Markets: New Methodologies. The special issue will include contributions from Judy Fudge, Diamond Ashiagbor, Simon Deakin, Shelley Marshall, Jenny Julen Votinius and Robert Knegt.
If labour law, as Arthurs puts it, ‘takes its purpose, form, and content from the larger politica... more If labour law, as Arthurs puts it, ‘takes its purpose, form, and content from the larger political economy from which it originates and operates’, what shape does or should labour law assume in response to the transformation of the political economy in countries of the global North, with the declining prevalence of the postwar model of full employment within a formal welfare state regime? Correspondingly, what is the proper role to be played by labour law and labour relations institutions in the development process within industrialising countries of the global South?
This paper considers the role of international labour rights in an era of globalisation. It begin... more This paper considers the role of international labour rights in an era of globalisation. It begins from Patrick Macklem's definition of that role in terms of providing the international legal order with a measure of normative legitimacy. It then interrogates the relationship between sovereignty and international labour rights in an era of globalization, highlighting the particular significance, in this context, of the voluntary surrender by nation states of elements of their sovereignty. It questions whether Macklem has given due consideration to this phenomenon, and to its consequences for the rights and interests of workers; whether, therefore, he has succeeded in providing an account of international labour rights that is at once descriptive and normative, as he intends it to be. Having drawn attention to the limitations of international labour rights, the paper concludes by commenting briefly on the desirability of a body of transnational labour law, of which international labour law would form only one part.
In A Purposive Approach to Labour Law, Guy Davidov advocates the development of such an approach ... more In A Purposive Approach to Labour Law, Guy Davidov advocates the development of such an approach as potentially useful to academics, and to legislatures, courts, employees and employers. The task, as he defines it, is both normative and descriptive in nature, directed at achieving a ‘clear understanding of what the law is trying to achieve (or should try to achieve).’ Having diagnosed, in the opening passages of the book, a ‘mismatch between goals and means’ in the field of labour law, Davidov goes on to utilise his discussion of labour law’s purposes as a first step towards restoring the connection between (particular) labour laws and the goals behind them. (His concern, when he talks of a mismatch, is with the ‘scope’ of labour laws – to whom do they apply – and with questions of compliance, enforcement and obsolescence.) But let us note at the outset that the claim made for the usefulness of the purposive approach is much broader than that: ‘[whenever] we are confronted with the need to update (or reform) labour laws, interpret specific provisions, or ask whether a law is constitutional’, the discussion must start, Davidov asserts, with the identification of the law’s purpose.
In my contribution to this volume, my focus lies with the particular way in which Davidov seeks to identify the purposes of labour law. I begin by exploring in greater detail the nature of his project: why he wishes to identify labour law’s purposes; how he sets about doing so. On the basis of that exploration, I raise the question whether Davidov’s identification of labour law’s purposes is on the face of it sufficiently objective, and therefore authoritative, to be useful in the manner that he would like it to be. The final part of the paper is devoted to a brief discussion of possible alternative methods of identifying labour law’s purposes, assessed against Davidov’s ambition of assisting the legislature, the judiciary, and potential litigants in the interpretation and application of the law.
Our aim in this article is to analyse the provisions of the Trade Union Act 2016 that deal with p... more Our aim in this article is to analyse the provisions of the Trade Union Act 2016 that deal with pre-strike ballots and picketing. We also consider Government proposals to legislate in respect of protests associated with industrial action ('leverage action'), which were abandoned in favour of plans to amend the Code of Practice on Picketing. We note the suggestion made by several commentators and Opposition politicians that the Government might have intended with these changes to make it significantly more difficult for trade unions and workers to exercise their rights to take industrial action, and to engage in forms of protest associated with industrial action. Examining the stated policy aims of Government, and available evidence which speaks to those policy aims and to the likely impact of the new rules, we argue that the freedom of workers and trade unions to participate in and organise industrial action has indeed been narrowed very considerably by this Act; further, that the case for amending the existing legal framework was not at all well made.
This chapter aims to investigate the ways in which the notion of conflict has figured within acad... more This chapter aims to investigate the ways in which the notion of conflict has figured within academic depictions of a crisis in the discipline of labour law, and, further, how it has been understood and deployed in policy debates regarding labour laws and labour markets. The starting point for the investigation is the observation that in both scholarly and policy discourse, the existence of conflict between the social classes has tended to be underemphasised in recent years, even by those on the left or centre-left. Conflicts of interest are located instead as arising between workers, or groups of workers – designated often as 'insiders' and 'outsiders' – and policy prescriptions drafted accordingly.
This paper describes Otto Kahn-Freund's advocacy of the British'collective laissez-faire'system o... more This paper describes Otto Kahn-Freund's advocacy of the British'collective laissez-faire'system of regulation of industrial relations, in which regulation proceeded autonomously of the state. It suggests that a weakness of collective laissez-faire as a normative principle was its failure to make adequate provision for the furtherance of the public interest. It links this failure to a more general reluctance, on the part of Kahn-Freund, to conceive of the state as representative of the public interest. And it seeks to explain this reluctance with reference to Kahn-Freund's experiences of living and working as a labour court judge in the Weimar Republic, and of moving to the UK as a refugee from Nazism.
Hugo Sinzheimer (1875 – 1945) was a legal scholar and politician, widely regarded today as the fo... more Hugo Sinzheimer (1875 – 1945) was a legal scholar and politician, widely regarded today as the founding father of German labour law. In this chapter, I revisit his work on the economic, or labour, constitution (Wirtschaftsverfassung, Arbeitsverfassung). Against those who argue that under conditions of globalisation ‘old’ or ‘traditional’ ways of thinking about labour law become outdated and unhelpful, I suggest that certain core elements of Sinzheimer’s work retain their validity. In particular, his analysis of labour law with reference to its wider constitutional function continues to provide a useful basis for the critical analysis of labour law, underscoring the aspirations of labour law in terms of the defence of human dignity and the emancipation of man within the economic sphere. A second aim of the chapter is to consider how the generalisable elements of Sinzheimer’s conception of labour law as constitutional law might be re-specified for current economic conditions.
This paper aims to assess the nature and significance of Lord Wedderburn’s contribution to the el... more This paper aims to assess the nature and significance of Lord Wedderburn’s contribution to the elaboration of a theory of labour law. Noting the extent to which Wedderburn was influenced, in this respect as in others, by the work of Otto Kahn-Freund, it focuses on the question of whether Wedderburn ever developed a theory of labour law that was clearly distinguishable from Kahn-Freund’s. Were there significant differences in the two scholars’ expositions of abstentionism, or collective laissez-faire? Through a close reading of Wedderburn’s work, it is suggested that Wedderburn was a strong proponent of the principle of collective laissez-fare, in his early as well as his later writing. In the changed political context of the 1980s and 1990s, he undertook the important task of seeking to update or restate the principle as an expression of social-democratic values in the field of work and working relationships.
Exploring different approaches to the study of labour law, this book examines different ways of c... more 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.
Drawing on the work of Max Weber, this paper considers the utility of an approach to the study of... more Drawing on the work of Max Weber, this paper considers the utility of an approach to the study of labour law, which it calls the economic sociology of labour law (ESLL). It identifies the contract for work as the key legal institution in the field, and the primary focus of scholarly analysis. Characterising the act of contracting for work as an example of what Weber called economic social action oriented to the legal order, it proposes that Weber's notion of the labour constitution be used to map the context within which contracting for work takes place. And it argues that, in comparison to traditional socio-legal approaches, ESLL has the significant advantage of allowing for account to be taken of the individual and commercial, as well as the social and legal, elements of contracting for work.
This is the author's response to a book symposium on my 2014 monograph, The Labour Constitution: ... more This is the author's response to a book symposium on my 2014 monograph, The Labour Constitution: the Enduring Idea of Labour Law. The symposium includes contributions from Karl Klare, Judy Fudge, Michael Fischl, Emilios Christodoulidis and Guy Mundlak. These contributions were first presented at the LLRN2 Conference in Amsterdam in 2015, and are published now to mark the new paperback edition of the book (December 2017).
An extended case commentary on the English Court of Appeal's decision in the case of PDAU v Boots... more An extended case commentary on the English Court of Appeal's decision in the case of PDAU v Boots the Chemist, which considers at length the scope of the right to collective bargaining protected by Article 11 of the European Convention on Human Rights.
This short piece introduces a special issue of Social & Legal Studies on the topic Labour Laws an... more This short piece introduces a special issue of Social & Legal Studies on the topic Labour Laws and Labour Markets: New Methodologies. The special issue will include contributions from Judy Fudge, Diamond Ashiagbor, Simon Deakin, Shelley Marshall, Jenny Julen Votinius and Robert Knegt.
If labour law, as Arthurs puts it, ‘takes its purpose, form, and content from the larger politica... more If labour law, as Arthurs puts it, ‘takes its purpose, form, and content from the larger political economy from which it originates and operates’, what shape does or should labour law assume in response to the transformation of the political economy in countries of the global North, with the declining prevalence of the postwar model of full employment within a formal welfare state regime? Correspondingly, what is the proper role to be played by labour law and labour relations institutions in the development process within industrialising countries of the global South?
This paper considers the role of international labour rights in an era of globalisation. It begin... more This paper considers the role of international labour rights in an era of globalisation. It begins from Patrick Macklem's definition of that role in terms of providing the international legal order with a measure of normative legitimacy. It then interrogates the relationship between sovereignty and international labour rights in an era of globalization, highlighting the particular significance, in this context, of the voluntary surrender by nation states of elements of their sovereignty. It questions whether Macklem has given due consideration to this phenomenon, and to its consequences for the rights and interests of workers; whether, therefore, he has succeeded in providing an account of international labour rights that is at once descriptive and normative, as he intends it to be. Having drawn attention to the limitations of international labour rights, the paper concludes by commenting briefly on the desirability of a body of transnational labour law, of which international labour law would form only one part.
In A Purposive Approach to Labour Law, Guy Davidov advocates the development of such an approach ... more In A Purposive Approach to Labour Law, Guy Davidov advocates the development of such an approach as potentially useful to academics, and to legislatures, courts, employees and employers. The task, as he defines it, is both normative and descriptive in nature, directed at achieving a ‘clear understanding of what the law is trying to achieve (or should try to achieve).’ Having diagnosed, in the opening passages of the book, a ‘mismatch between goals and means’ in the field of labour law, Davidov goes on to utilise his discussion of labour law’s purposes as a first step towards restoring the connection between (particular) labour laws and the goals behind them. (His concern, when he talks of a mismatch, is with the ‘scope’ of labour laws – to whom do they apply – and with questions of compliance, enforcement and obsolescence.) But let us note at the outset that the claim made for the usefulness of the purposive approach is much broader than that: ‘[whenever] we are confronted with the need to update (or reform) labour laws, interpret specific provisions, or ask whether a law is constitutional’, the discussion must start, Davidov asserts, with the identification of the law’s purpose.
In my contribution to this volume, my focus lies with the particular way in which Davidov seeks to identify the purposes of labour law. I begin by exploring in greater detail the nature of his project: why he wishes to identify labour law’s purposes; how he sets about doing so. On the basis of that exploration, I raise the question whether Davidov’s identification of labour law’s purposes is on the face of it sufficiently objective, and therefore authoritative, to be useful in the manner that he would like it to be. The final part of the paper is devoted to a brief discussion of possible alternative methods of identifying labour law’s purposes, assessed against Davidov’s ambition of assisting the legislature, the judiciary, and potential litigants in the interpretation and application of the law.
Our aim in this article is to analyse the provisions of the Trade Union Act 2016 that deal with p... more Our aim in this article is to analyse the provisions of the Trade Union Act 2016 that deal with pre-strike ballots and picketing. We also consider Government proposals to legislate in respect of protests associated with industrial action ('leverage action'), which were abandoned in favour of plans to amend the Code of Practice on Picketing. We note the suggestion made by several commentators and Opposition politicians that the Government might have intended with these changes to make it significantly more difficult for trade unions and workers to exercise their rights to take industrial action, and to engage in forms of protest associated with industrial action. Examining the stated policy aims of Government, and available evidence which speaks to those policy aims and to the likely impact of the new rules, we argue that the freedom of workers and trade unions to participate in and organise industrial action has indeed been narrowed very considerably by this Act; further, that the case for amending the existing legal framework was not at all well made.
This chapter aims to investigate the ways in which the notion of conflict has figured within acad... more This chapter aims to investigate the ways in which the notion of conflict has figured within academic depictions of a crisis in the discipline of labour law, and, further, how it has been understood and deployed in policy debates regarding labour laws and labour markets. The starting point for the investigation is the observation that in both scholarly and policy discourse, the existence of conflict between the social classes has tended to be underemphasised in recent years, even by those on the left or centre-left. Conflicts of interest are located instead as arising between workers, or groups of workers – designated often as 'insiders' and 'outsiders' – and policy prescriptions drafted accordingly.
This paper describes Otto Kahn-Freund's advocacy of the British'collective laissez-faire'system o... more This paper describes Otto Kahn-Freund's advocacy of the British'collective laissez-faire'system of regulation of industrial relations, in which regulation proceeded autonomously of the state. It suggests that a weakness of collective laissez-faire as a normative principle was its failure to make adequate provision for the furtherance of the public interest. It links this failure to a more general reluctance, on the part of Kahn-Freund, to conceive of the state as representative of the public interest. And it seeks to explain this reluctance with reference to Kahn-Freund's experiences of living and working as a labour court judge in the Weimar Republic, and of moving to the UK as a refugee from Nazism.
Hugo Sinzheimer (1875 – 1945) was a legal scholar and politician, widely regarded today as the fo... more Hugo Sinzheimer (1875 – 1945) was a legal scholar and politician, widely regarded today as the founding father of German labour law. In this chapter, I revisit his work on the economic, or labour, constitution (Wirtschaftsverfassung, Arbeitsverfassung). Against those who argue that under conditions of globalisation ‘old’ or ‘traditional’ ways of thinking about labour law become outdated and unhelpful, I suggest that certain core elements of Sinzheimer’s work retain their validity. In particular, his analysis of labour law with reference to its wider constitutional function continues to provide a useful basis for the critical analysis of labour law, underscoring the aspirations of labour law in terms of the defence of human dignity and the emancipation of man within the economic sphere. A second aim of the chapter is to consider how the generalisable elements of Sinzheimer’s conception of labour law as constitutional law might be re-specified for current economic conditions.
This paper aims to assess the nature and significance of Lord Wedderburn’s contribution to the el... more This paper aims to assess the nature and significance of Lord Wedderburn’s contribution to the elaboration of a theory of labour law. Noting the extent to which Wedderburn was influenced, in this respect as in others, by the work of Otto Kahn-Freund, it focuses on the question of whether Wedderburn ever developed a theory of labour law that was clearly distinguishable from Kahn-Freund’s. Were there significant differences in the two scholars’ expositions of abstentionism, or collective laissez-faire? Through a close reading of Wedderburn’s work, it is suggested that Wedderburn was a strong proponent of the principle of collective laissez-fare, in his early as well as his later writing. In the changed political context of the 1980s and 1990s, he undertook the important task of seeking to update or restate the principle as an expression of social-democratic values in the field of work and working relationships.
Exploring different approaches to the study of labour law, this book examines different ways of c... more 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.
This is a review of Cathryn Costello & Mark Freedland (eds), Migrants at Work: Immigration & Vuln... more This is a review of Cathryn Costello & Mark Freedland (eds), Migrants at Work: Immigration & Vulnerability in Labour Law, Oxford: Oxford University Press, 2014, 512 pp, hb £70.00.
This is a review of Alan Bogg, Catherine Costello, ACL Davies and Jeremias Prassl (eds), The Auto... more This is a review of Alan Bogg, Catherine Costello, ACL Davies and Jeremias Prassl (eds), The Autonomy of Labour Law, Oxford: Hart, 2015, 427 pp, hb $120.00.
Critical theory, characteristically linked with the politics of theoretical engagement, covers th... more Critical theory, characteristically linked with the politics of theoretical engagement, covers the manifold of the connections between theory and praxis. This thought-provoking Research Handbook captures the broad range of those connections as far as legal thought is concerned and retains an emphasis both on the politics of theory, and on the notion of theoretical engagement. The first part examines the question of definition and tracks the origins and development of critical legal theory along its European and North American trajectories. The second part looks at the thematic connections between the development of legal theory and other currents of critical thought such as; Feminism, Marxism, Critical Race Theory, varieties of post-modernism, as well as the various ‘turns’ (ethical, aesthetic, political) of critical legal theory. The third and final part explores particular fields of law, addressing the question how the field has been shaped by critical legal theory, or what critical approaches reveal about the field, with the clear focus on opportunities for social transformation.
What is to be learned from the chaotic downfall of the Weimar Republic and the erosion of Europea... more What is to be learned from the chaotic downfall of the Weimar Republic and the erosion of European liberal statehood in the interwar period vis-a-vis the ongoing Europeancrisis? This book analyses and explains the recurrent emergence of crises in European societies. It asks how previous crises can inform our understanding of the present crisis. The particular perspective advanced is that these crises not only are economic and social crises, but must also be understood as crises of public power, order and authority. In other words, it argues that substantial challenges to the functional and normative setup of democracy and the rule of law were central to the emergence and the unfolding of these crises.The book draws on and adds to the rich ’crises literature’ developed within the critical theory tradition to outline a conceptual framework for understanding what societal crises are. The central idea is that societal crises represent a discrepancy between the unfolding of social processes and the institutional frameworks that have been established to normatively stabilize such processes. The crises at issue emerged in periods characterized by strong social, economic and technological transformations as well as situations of political upheaval. As such, the crises represented moments where the existing functional and normative grid of society, as embodied in notions of public order and authority, were severely challenged and in many instances undermined. Seen in this perspective, the book reconstructs how crises unfolded, how they were experienced, and what kind of responses the specific crises in question provoked.
List of Content
Introduction: European Crises of Public Power: From Weimar until Today, Poul F. Kjaer & Niklas Olsen / PART I: Semantics, Notions and Narratives of Societal Crisis / 1. What Time Frame Makes Sense for Thinking about Crises?, David Runciman / 2. The Stakes of Crises, Janet Roitman / PART II: Weimar and the Interwar Period: Ideologies of Anti-Modernism and Liberalism / 3.The Crisis of Modernity – Modernity as Crisis: Towards a Typology of Crisis Discourses in Interwar East Central Europe and Beyond, Balázs Trencsényi / 4. European Legitimacy Crises – Weimar and Today: Rational and Theocratic Authority in the Schmitt-Strauss Exchange, John P. McCormick / 5.Crisis and the Consumer: Re-constructions of Liberalism in Twentieth Century Political Thought, Niklas Olsen / PART III: The Causes of Crises: From Corporatism to Governance / 6. The Constitutionalisation of Labour Law and the Crisis of National Democracy, Chris Thornhill / 7. Conflict and the Crisis in Labour Law: From Weimar to Austerity, Ruth Dukes / 8. From the Crisis of Corporatism to the Crisis of Governance, Poul F. Kjaer / PART IV: The Euro and the Crisis of Law and Democracy / 9. What is Left of the European Economic Constitution II? From Pyrrhic Victory to Cannae Defeat, Christian Joerges / 10. Reflections on Europe’s “Rule of Law Crises”, Jan-Werner Müller / 11. Democracy under Siege: The Decay of Constitutionalisation and the Crisis of Public Law and Public Opinion, Hauke Brunkhorst / PART V: The Consequences of Crises and the Future of Europe / 12. Crises and Extra-Legality: From Above and from Below, William E. Scheuerman / 13. “We could Go down the Road of Lebanon”: Crisis Thinking on the Anti-Muslim Far Right, Mikkel Thorup / 14. Conclusion and Perspectives: The Re-constitution of Europe, Poul F. Kjaer & Niklas Olsen
Review and review essays: Romain Bonnet (2017): European Review of History: Revue européenne d'histoire, DOI: 10.1080/13507486.2017.1317054 Andreas Marklund (2018) Historisk Tidsskrift, 117, 2, 637 – 39. Pablo Holmes (2018), ‘The constitutional politics of crisis in Europe’, Culture, Practice & European Policy, 3, 2, 92 – 98.
In this chapter, the mainstream, critical tradition in labour law is elaborated by way of the ide... more In this chapter, the mainstream, critical tradition in labour law is elaborated by way of the identification and discussion of four key elements of that tradition. These are (i) a (partial) rejection of the public/private divide in law; (ii) a commitment to legal pluralism; (iii) legal scepticism; and (iv) the adoption of socio-legal methods. In the second part of the chapter, I explain the threat posed in recent decades to the continued viability of systems of labour law that are broadly-speaking protective of workers interests, and emancipatory of workers, by myriad pressures associated with globalization and deindustrialization. Again, the discussion proceeds by way of consideration of the four key elements of the critical tradition identified in Part I. The main question addressed is that of how scholars have sought to adapt their approaches and methods so as to continue to make interventions that are critical in nature and concerned, still, with the transformative potential of labour law.
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Papers by Ruth Dukes
In my contribution to this volume, my focus lies with the particular way in which Davidov seeks to identify the purposes of labour law. I begin by exploring in greater detail the nature of his project: why he wishes to identify labour law’s purposes; how he sets about doing so. On the basis of that exploration, I raise the question whether Davidov’s identification of labour law’s purposes is on the face of it sufficiently objective, and therefore authoritative, to be useful in the manner that he would like it to be. The final part of the paper is devoted to a brief discussion of possible alternative methods of identifying labour law’s purposes, assessed against Davidov’s ambition of assisting the legislature, the judiciary, and potential litigants in the interpretation and application of the law.
Monograph by Ruth Dukes
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.
In my contribution to this volume, my focus lies with the particular way in which Davidov seeks to identify the purposes of labour law. I begin by exploring in greater detail the nature of his project: why he wishes to identify labour law’s purposes; how he sets about doing so. On the basis of that exploration, I raise the question whether Davidov’s identification of labour law’s purposes is on the face of it sufficiently objective, and therefore authoritative, to be useful in the manner that he would like it to be. The final part of the paper is devoted to a brief discussion of possible alternative methods of identifying labour law’s purposes, assessed against Davidov’s ambition of assisting the legislature, the judiciary, and potential litigants in the interpretation and application of the 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.
List of Content
Introduction: European Crises of Public Power: From Weimar until Today, Poul F. Kjaer & Niklas Olsen / PART I: Semantics, Notions and Narratives of Societal Crisis / 1. What Time Frame Makes Sense for Thinking about Crises?, David Runciman / 2. The Stakes of Crises, Janet Roitman / PART II: Weimar and the Interwar Period: Ideologies of Anti-Modernism and Liberalism / 3.The Crisis of Modernity – Modernity as Crisis: Towards a Typology of Crisis Discourses in Interwar East Central Europe and Beyond, Balázs Trencsényi / 4. European Legitimacy Crises – Weimar and Today: Rational and Theocratic Authority in the Schmitt-Strauss Exchange, John P. McCormick / 5.Crisis and the Consumer: Re-constructions of Liberalism in Twentieth Century Political Thought, Niklas Olsen / PART III: The Causes of Crises: From Corporatism to Governance / 6. The Constitutionalisation of Labour Law and the Crisis of National Democracy, Chris Thornhill / 7. Conflict and the Crisis in Labour Law: From Weimar to Austerity, Ruth Dukes / 8. From the Crisis of Corporatism to the Crisis of Governance, Poul F. Kjaer / PART IV: The Euro and the Crisis of Law and Democracy / 9. What is Left of the European Economic Constitution II? From Pyrrhic Victory to Cannae Defeat, Christian Joerges / 10. Reflections on Europe’s “Rule of Law Crises”, Jan-Werner Müller / 11. Democracy under Siege: The Decay of Constitutionalisation and the Crisis of Public Law and Public Opinion, Hauke Brunkhorst / PART V: The Consequences of Crises and the Future of Europe / 12. Crises and Extra-Legality: From Above and from Below, William E. Scheuerman / 13. “We could Go down the Road of Lebanon”: Crisis Thinking on the Anti-Muslim Far Right, Mikkel Thorup / 14. Conclusion and Perspectives: The Re-constitution of Europe, Poul F. Kjaer & Niklas Olsen
Review and review essays:
Romain Bonnet (2017): European Review of History: Revue européenne d'histoire, DOI: 10.1080/13507486.2017.1317054
Andreas Marklund (2018) Historisk Tidsskrift, 117, 2, 637 – 39.
Pablo Holmes (2018), ‘The constitutional politics of crisis in Europe’, Culture, Practice & European Policy, 3, 2, 92 – 98.