Normative Distortions in Labour Law
| DOI | 10.1177/0964663917753724 |
| Published date | 01 August 2018 |
| Date | 01 August 2018 |
| Subject Matter | Articles |
Article
Normative Distortions
in Labour Law:
Exploring the Field of
Parental Rights in
Working Life
Jenny Jule
´n Votinius
Lunds Universitet, Sweden
Abstract
This article identifies, conceptualizes and analyses a normative conflict, embedded in
social practises and conceptions on gender in the institutional framework of the market,
which underlies labour law regulation as well as legal argumentation regarding working
parents. The article evinces and models the basic structure of vital mechanisms operative
in weakening parental rights in working life and labour law. The model is fleshed out
inductively, using examples from Swedish national law, where the protection of parental
rights is fairly strongly formulated, but where, in the same time, the provisions con-
cerning employees’ parenthood have a relatively weak position in the living law. The
weakness is explained as a normative incoherence, as expressed in labour law adjudi-
cation. In their application, legal provisions to support parental caring and gender
equality thus can be forced to give way to encroaching norms based on the value of
market efficiency.
Keywords
Gender, labour law, market values, motherhood , normative conflict, parental rights,
Swedish law
Corresponding author:
Jenny Jule
´n Votinius, Faculty of Law, Lunds Universitet, Lilla Gra
˚bro
¨dersgatan 4, Lund 221 00, Sweden.
Email: jenny.julen_votinius@jur.lu.se
Social & Legal Studies
2018, Vol. 27(4) 493–511
ªThe Author(s) 2018
Reprints and permission:
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DOI: 10.1177/0964663917753724
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Introduction
Perhaps more than in any other area of law, the activities and relations regulated in
labour law are characterized by a discordance between the interests of the parties. This is
due to the asymmetrical nature of the contractual relationship. Employers and employees
do have certain fundamental interests in common, for instance regarding the need for
stability, growth and competitiveness; however, the very purpose of labour law is to
counterbalance the asymmetry in the relationship between employers and employees.
This is not to say that the interventions of labour law are always successful. Employ-
ers may sometimes be able, without breaching the law, to circumvent rules intended to
protect their employees. Similarly, employees may be unable to claim certain rights in
practice due to the detrimental treatment by their employers which they risk at a later
stage. In cases like these, the discordance stemming from the asymmetry between the
parties is particularly apparent, for the legal rules for protecting employees are rendered
less effective. Such results can be explained as arising from a normative conflict,
whereby deviating norms encroach at times upon the provisions aimed at safeguarding
the rights of employees – rendering such provisions relatively weak in the living law
(Jule´n Votinius, 2013). The normative conflicts engendered within the institutional
framework of the labour market reflect a complex of relationships among a variety of
norms – norms that come to expression on both social and legal levels (cf. Christensen,
1998).
In this article, I explore the normative conflicts that arise in connection with parental
rights in working life. I hope in the process to pinpoint and clarify the position within
labour law which is accorded to the parents of small children. The legal material here
comes from Swedish national law, which sets out the protection of parental rights in
fairly strong terms. Empirical information about the social reality of working parents is
provided from social studies scholarship on family, gender and policy research,
along with government reports, trade union surveys and investigations published by the
Equality Ombudsman authority.
In their efforts to reveal and analyse conflicting norms, their interplay and the argu-
ments around them, labour law research have much to gain from developing analytical
models capable of recognizing and integrating the und erlying conceptual and social
aspects of the matter. Much of the content of legal rules amounts to a codification of
moral practices and fundamental values that have emerged in society, and which form
the basis for – but also are reflective of – the organization of communities and the
establishment of relationships between people in their everyday lives (Brooks and
Madden, 2012; Durkheim, 1988 [1893]). A study that starts from the ideas forming the
background to the matter of law to be explored makes it possible to identify the dominant
underlying values in the area. The imperatives stemming from these dominant values
affect the application and impact of law, and they may also be represented in the legal
sources themselves. On an aggregate level, the imperatives supporting similar values and
ideals play out in norms – norms that govern the area in question and which may give
raise to normative conflicts. In what follows, I distinguish three important governing
norms in connection with parental rights in working life: th e parenthood norm,the
primacy-of-working-life norm and the motherhood norm. These three norms function
494 Social & Legal Studies 27(4)
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