Economic Crises, Crisis of Labour Law? Lessons from Weimar
| Date | 01 June 2020 |
| Author | Michel Coutu |
| DOI | http://doi.org/10.1111/jols.12225 |
| Published date | 01 June 2020 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 2, JUNE 2020
ISSN: 0263-323X, pp. 221–39
Economic Crises, Crisis of Labour Law? Lessons from
Wei ma r
Michel Coutu∗
Labour law has been thrown into turmoil in many large industrialized
countries with democratic tradition and market economies. In fact,
rapid economic globalization resulted in an irremediable decline in
collective bargaining in most of the states that entered into the sphereof
Anglo-Saxon capitalism. On a first reading, the financial crisis of 2008
exacerbated this retreat of labour law back to its initial individualist
and contractual forms. In analysing the contemporary crisis of labour
law, the historical-comparativemethod can be highly fruitful, especially
if one considers the precedent of the economic crisis of 1929. On
this basis, I first consider an influential text by Hugo Sinzheimer on
the ‘crisis of labour law’ in Weimar Germany and a study by Otto
Kahn-Freund on the changing function of labour law in the same
context. These works can be connected to the concept of the ‘labour
constitution’, which Max Weber notably developed in an empirical
sense, and which finds its extension in the later works of Thilo Ramm, a
labour scholar of international reputation.
INTRODUCTION
Labour law has been thrown into turmoil in many large, industrialized
countries with democratic traditions and market economies. What we can
describe at first glance, and despite the imprecision of the expression, as
a ‘crisis’ of labour law appeared well before the financial crisis of 2008
and its aftermath. In fact, the neoliberal turn at the beginning of the 1980s,
marked by the rise to power of the Reagan and Thatcher governments, as
∗School of Industrial Relations, Université de Montréal, Pavillon Lionel-
Groulx, 3150 Rue Jean-Brillant, Montreal, QC, H3T 1N8, Canada
michel.coutu@umontreal.ca
Parts of this article are also to be published under the title ‘Crises économiques, crise
du droit du travail? Quelques leçons de Weimar’ in the French journal Droit et Société
(forthcoming). Many thanks to Alexandra Law for translating the article. Thanks also to
Ben Woolhead for a final revision.
221
© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
well as, more fundamentally, rapid economic globalization,1resulted in an
irremediable decline in collective bargaining in most of the states that entered
into the sphere of Anglo-Saxon capitalism.2
I will argue that, on a first reading, the financial crisis of 2008 exacerbated
this retreat of labour law back to its initial individualist and contractual
forms. In the immediate aftermath, there was a heightened awareness of the
economically irrational tendencies of speculative financial capitalism, and
a belief in the need to return to much more directive modes of regulation,
inspired by the interventionist welfare state. However, all of the fine words in
this regard have failed to translate into action.
In this context, how does one analyse the contemporary crisis of labour law,
which I propose here as a hypothesis to be verified? Above all, appropriate
theoretical tools are required, and in this regard, the historical-comparative
method, supported by the science of labour law, can be highly fruitful,
especially if one considers the precedent of the economic crisis of 1929;
though that crisis was very different in terms of its historical and geographical
context, examining it from the perspective of its impact on labour law can
certainly represent a valid starting point.
On this basis, I first consider an influential text by Hugo Sinzheimer,
published in 1933, on the ‘crisis of labour law’ in Weimar Germany.3
Sinzheimer4highlights well the connections between the economic crisis of
1 See G. Lyon-Caen, ‘La crise du droit du travail’ in In Memoriam Otto Kahn-Freund,
eds F. Gamillscheg et al. (1980) 517. For Lyon-Caen, this crisis was provoked by the
transformations of the economy at the global scale, not by a specific economic crisis.
See also G. Lyon-Caen, ‘La crise actuelle du droit du travail’ in Le droit capitaliste du
travail, eds F. Collin et al. (1980b) 257. Compare A. Jeammaud, ‘Le droit du travail de
la crise’ (1980) 6 Procès 73. On the interaction between labour law and the economy,
see A. Jeammaud, Le droit du travail dans le capitalisme, question de fonctions et
de fonctionnement (2005) WP C.S.D.L.E. ‘Massimo D’Antona’ .INT – 41/2005,
at<http://csdle.lex.unict.it/Archive/WP/WP%20CSDLE%20M%20DAntona/WP%
20CSDLE%20M%20DAntona-INT/20111230-115551_jeammaud_n41intpdf.pdf.>
2 I take inspiration here from the opposition between liberal capitalism and coordinated
capitalism advanced by the current ‘varieties of capitalism’ (VoC) approach. See
notably P. A. Hall and D. Soskice (eds), Varieties of Capitalism: The Institutional
Foundations of Comparative Advantage (2001).
3 H. Sinzheimer, ‘Die Krisis des Arbeitsrechts’ in Arbeitsrecht und Rechtssoziologie:
Gesammelte Aufsätze und Rede vol. 1, eds O. Kahn-Freund and T. Ramm (1976) 135.
4 Hugo Sinzheimer (1875–1945) was Professor of Labour Law at Goethe University
Frankfurt. Editor of Article 165 of the Constitution of the Weimar Republic (on
works councils), he wrote remarkable works on labour law. Sinzheimer had a decisive
influence on German (and European) labour law under Weimar and after the Second
World War. Jewish and socialist, he was exiled when the National Socialists came
to power and took refuge in the Netherlands. Living in hiding during the German
Occupation, he did not survive to the Liberation. On Sinzheimer, see U. Zachert, ‘Hugo
Sinzheimer: Juriste praticien et pionnier du droit moderne’ in Les juristes de gauche
sous la république de Weimar, ed. C. M. Herrera (2002) 49; A. Seifert, ‘Von der Person
zum Menschen im Recht: Zum Begriff des Sozialen Rechts bei Hugo Sinzheimer’
(2011) 3 Soziales Recht 62; L. Nogler, ‘In Memory of Hugo Sinzheimer (1875–
222
© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
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