Constitutionalizing Employment Relations: Sinzheimer, Kahn‐Freund, and the Role of Labour Law
| Author | Ruth Dukes |
| Date | 01 September 2008 |
| DOI | http://doi.org/10.1111/j.1467-6478.2008.00442.x |
| Published date | 01 September 2008 |
JOURNAL OF LAW AND SOCIETY
VOLUME 35, NUMBER 3, SEPTEMBER 2008
ISSN: 0263-323X, pp. 341±63
Constitutionalizing Employment Relations: Sinzheimer,
Kahn-Freund, and the Role of Labour Law
Ruth Dukes*
Hugo Sinzheimer and his one-time student Otto Kahn-Freund are
widely regarded as the founding fathers of German and British labour
law respectively. While, at first glance, the two scholars might appear
to have advocated rather different approaches to the regulation of
employment relations, a review of their work reveals that both argued,
in essence, for the `constitutionalization' of those relations. Both
argued, in other words, for the removal from the economic sphere of
the otherwise inequitable consequences of the functioning of private
law, so that collectivized labour might participate with capital, on a
parity basis, in the autonomous regulation of the economy.
INTRODUCTION
It is widely recognized that the process of globalization poses a number of
challenges for labour law. Wherever economic and legal conditions are
perceived to constitute barriers to the maximization of profit, globalization
means that capital is free to relocate. As a consequence of the mobility of
capital, pressure grows for nation states to tailor their economies so as to
attract and retain capital investment. Meanwhile, arguments against pro-
tective labour laws, against collective representation and collective regula-
tory mechanisms gain strength: where is the sense in attempting to redress,
with national law and institutions, the harm caused to workers by the free
play of market forces, of managerial prerogative and the capitalist drive for
profit, if capital can simply sidestep these efforts and set up elsewhere?
Doesn't it make more sense to tailor labour laws to serve the needs of
341
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* School of Law, University of Glasgow, Stair Building, The Square,
Glasgow, G12 8QQ, Scotland
r.dukes@lbss.gla.ac.uk
Iamvery grateful to Paul Davies and Emilios Christodoulidis for comments on an earlier
draft.
business so that national companies might compete on a global stage? In the
face of the apparent impotence of national legal systems to restrain the
power of global capital, many commentators have focused their hopes on the
potential of international or transnational human rights charters to perform
this role. In the United Kingdom, and elsewhere, there is talk of the benefits
of `constitutionalizing' labour rights and social rights: of entrenching certain
rights in national constitutions, or of enacting transnational instruments such
as the European Social Charter wholesale.
1
The hope is that if workers are
granted a range of legally enforceable, constitutionally guaranteed claims,
their position in the workplace will be strengthened such that they will be
better placed to demand and obtain fair and equal treatment at work.
Used in application to labour law, the term `constitutionalization' has an
older and rather different meaning. In Sidney and Beatrice Webb's text on
Industrial Democracy, first published in 1897, the idea of an industrial
constitution was used to refer to the development of trade unionism, and to the
replacement of the individual negotiation of terms and conditions with
universal collective bargaining, described as `genuine' freedom of contract.
According to the Webbs, the experience of trade unionism and collective
bargaining in the United Kingdom revealed that a proper understanding of
democracy had to extend to economic as well as political relations.
2
The
democratization of the latter alone (as effected under the US Constitution or
the French Declaration of the Rights of Man and of the Citizen) left the
majority of the population, the manual-working wage earners, unemancipated.
To them, the uncontrolled power wielded by the owners of the means of
production, able to withhold from the manual worker all chance of subsistence
unless he accepted their terms, meant a far more genuine loss of liberty, and a
far keener sense of personal subjection, than the . .. far-off, impalpable rule of
the king.
3
In demanding freedom of association and factory legislation, workers
demanded, in effect, a `constitution' in the industrial realm. The legal
recognition of collective bargaining and the gradual elaboration of a labour
code signified the concession of a `Magna Carta' to the entire wage-earning
class, and the extension of the values of liberty and equality from the
political into the industrial sphere.
In contribution to the debates surrounding the establishment of a new
social democratic German state at the time of the First World War, the
Webbs' notion of an industrial, or economic,
4
constitution was taken up and
342
1K.D. Ewing, `Constitutional Reform and Human Rights: Unfinished Business' (2001)
5Edinburgh Law Rev. 1; V. Mantouvalou, `Work and Private Life: Sidabras and
Dziautas v Lithuania' (2005) 30 European Law Rev. 573; K. Monaghan,
`Constitutionalizing Equality' (2008) European Human Rights Law Rev. 20.
2S.and B. Webb, Industrial Democracy Vol. II (1897) 840±2.
3 id., p. 841.
4 The German word `Wirtschaft' can be translated as either `economy' or `industry'.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
To continue reading
Request your trial