Dialogue & Debate: Labour, Constitution and A Sense of Measure: A Debate with Alain Supiot
| Author | Ruth Dukes,Emilios Christodoulidis |
| DOI | 10.1177/0964663910365723 |
| Published date | 01 June 2010 |
| Date | 01 June 2010 |
Dialogue & Debate:
Labour, Constitution
and A Sense of Measure:A
Debate with Alain Supiot
Emilios Christodoulidis
University of Glasgow, UK
Ruth Dukes
University of Glasgow, UK
Introduction: Labour, Constitution and A Sense of Measure
The paper ‘A sense of measure’ that we publish in this section was Alain Supiot’s
contribution to a series of workshops organised at the School of Law of the University
of Glasgow, in autumn 2009, on the general theme of ‘constitutionalising employment
relations’. The underlying idea for the seminars was to ask the question of labour law
as a question of constitutional law; to cut across the categorical distinctions that are
taken, increasingly, as given between the public sphere and the workplace. The entrench-
ment of this distinction between public sphere and workplace obscures the fact that sig-
nificantly similar forms of powerlessness and vulnerability affect both citizens and
workers. The emphasis on constitutionalisation marked the attempt to recover an earlier
vocabulary of labour law; one that did not undercut the expression in anything but mar-
ket terms of the creation of value and the stakes of the employment relation. The original
impetus for our project was a shared concern that much of what has been written about
labour law over the past 10 years or so emphasised a move away from traditional con-
ceptions of its function of redressing asymmetries in the respective positions of employ-
ers and workers through protective measures, towards a full-blown market paradigm
focused on maximizing flexibility. Together with this development, there seemed to
be a growing perception that ‘old ways’ of regulating employment relations had become
inappropriate. Instead, there was discussion of the benefits of minimal or ‘light’
The papers published in this section were presented at the second of three workshops on the theme,
‘Constitutionalising Employment Relations’. We are grateful to Social & Legal Studies, the Modern Law Review
and the School of Law, University of Glasgow for providing financial support for the workshops.
Social & Legal Studies
19(2) 217–252
ªThe Author(s) 2010
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DOI: 10.1177/0964663910365723
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217
regulation, and of reflexive law, responsive law, soft law and default rules, their meaning
shifting to track developments from their origin in state regulation to current configura-
tions of global ‘regulation’. The emphasis on constitutionalising labour was intended to
allow us to confront the displacement head on; to ask:
If ‘entrenchment’ – and thus a measure of fixity and rigidity – is inherent in the
notion of ‘constitutionalisation’, how do we begin to conceptualise the appropriate
balance between fixity and flexibility? Is the choice of where to create rigidities and
where to allow flexibilities an irreducibly political one?
If the notion of constitutionalising employment relations reminds us of the potential
of the state to choose what ought to be rigid and what flexible (to entrench certain
rights and standards, to create legal frameworks which allow for processes of nego-
tiation, to distinguish what is negotiable and what not, to establish the contextual
conditions – in the sense of fundamental commitments, principles, procedural guar-
antees etc. – which provide the space for possible negotiation), under what conditions
can we credibly transfer this potential to the level of a ‘global’ constitutionalism?
If constitutional regimes are characterized by a crucial asymmetry in the protection
of people in the public sphere and the workplace, does a language of constitutiona-
lisation that purports to transfer principles from the former to the latter (in terms of
social dialogue, procedural rights etc.) achieve anything except to divert attention
away from the sources of powerlessness? And more generally: can the procedural
turn in legal thinking account for, capture, contain or exhaust the democratic impulse
in industrial relations?
In his contribution to the seminar series, Alain Supiot returns us to the constitutional
principles of the International Labour Organisation, declared as foundational and univer-
sal in Philadelphia, that underlie the organisation of employment. And he returns us cru-
cially to the relationship of work as a human relationship rather than a market exchange.
Supiot is, of course, in a unique position to do this, his work over the last decades so pro-
ductively straddling the fields of labour law and legal theory in what he would describe
as an anthropology of law – an ‘anthropology’ because it refers back ultimately to the
truth that there is ‘no wealth other than human beings’, and no defensible theory of value
production other than ‘adapting the economy to the needs of human beings’. Currently
Director of the Institute of Advanced Studies in Nantes, which is explicitly committed to
dialogue between the countries of the north and south, he headed in 1999 the team that
produced the ‘Beyond Employment’ report, referred to since as the ‘Supiot report’, for
the European Commission (Supiot, 2001). This included not only concrete proposals for
labour law reform but also what one might more broadly characterise as a universal
social policy for the European Union.
In its profound humanism and interpretive vision, Supiot’s recently translated Homo
Juridicus (Supiot, 2007) is a work which, as Peter Goodrich puts it, ‘belongs within what
can only be termed a non-school or institutionally diasporic species of legal critique’
(2009: 299). It is a work that elevates legal reason over and above the various reduction-
isms, whether these are of the law and economics varieties with their attendant quanti-
fications of value, or the various forms of systemic enfolding into old and new varieties
218 Social & Legal Studies 19(2)
218
of positivism. In the face of reductions or simplifications into generalised commodity
exchange, against the collapse of juridical personality (which as per Arendt spells noth-
ing short of totalitarianism), and against the incipient ‘market communism’ of the Eur-
opean Union, legal reason Supiot will tell us in his contribution recovers the ‘sense of
measure’, which is above all a ‘human measure’. In making such a claim for law, Supiot
understands law very much as a social hermeneutic harbouring sources of interpretation
which resist logics of instrumentalisation, programming, or scientific imperatives that
harness labour to standards of efficiency rather than justice. He thus pits law against the
management of human capital and its ‘downsizing’ in the direction of ‘value creation’
and accumulation, against not just the content but also the coinage which sets labour into
circulation as a commodity. Law as social hermeneutic thus strives to restore a proper
vocabulary to the discussion of working relations. It performs the function of an inter-
diction – a wonderful term for the equivocation it carries as that which on the one hand
resists, stems and interrupts and on the other mediates: inter-dicts. ‘Interdiction’ returns
us to the power of language not just as a tool – though of course it is that too – but as
commonality. To the management speak of ‘flexicurity’ of ‘human capital’, Supiot, in
the modality of interdiction, counter-poses ‘membership status’ (‘that breathes life into
pre-contractual forms of the social bond’), ‘capability’, ‘solidarity’ and the value of dig-
nity as irreducible to value created in financial markets.
Supiot emphasises, too, that for as long as debates on the ‘constitutional’ question of
Europe continue unabated, we find ourselves still in possession of options. It is certainly
true that as a consequence of globalization and the liberalization of markets there has
been a transformation of modes and relations of production, and a marked lessening
of the capacities of nation states to regulate labour relations – to regulate in ways which
limit the freedom of action of capital – in isolation from the rest of the world. In the rich
countries of the global north, there is increasing concern regarding the dangers of social
dumping, and race-to-the-bottom type deregulation strategies. From the south, there are
allegations of protectionism and impassioned defences of low labour standards as con-
tributing to the ‘comparative advantage’ of national economies. More locally, the same
issues arise within the European Union, as the contributors to our series remind us.
Building on years of research into the industrial relations and social standards of the
Baltic States, Charles Woolfson draws a bleak picture of the ‘desolidarisation’ of society
that has occurred there since the end of the Cold War: ‘the loss of a social dimension to
human existence in a raw free-for-all world of new capital accumulation’. The contrast
with the welfare states of old Europe is stark. To take one example, institutional toler-
ance of health and safety crimes in Lithuania has resulted in four times the rate of work-
place ‘killings’ than that which exists in France. And the response of the European Union
to this polarization of social standards between member states? The substitution of tra-
ditional ‘hard-law’ enforcement strategies with an increased reliance on soft law and vol-
untary measures; on self-regulation through ‘corporate social responsibility’.
Assessing the transformative potential of the use of norms based around principles
designed to promote social justice and social democracy, as advocated by Supiot, Keith
Ewing finds little reason for optimism. The Laval and Viking judgments of the European
Court of Justice (ECJ) reveal the inherent ambiguity of guiding principles: for where is
the social justice, from the point of view of the low-paid, low job security Latvian
Christodoulidis and Dukes 219
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