'Labour Law and Kantian Ideas of Legality and Citizenship' (University of Leicester School of Law Research Paper No. 14-07) by Lisa Rodgers
discusses
the relevance of Kantian ideas of legality and citizenship to the study of labour law. It is argued that Kantian ideas of legality have infiltrated labour law to a certain extent, but that the influence of this system has remained marginal. The sticking point has been the association of these ideas with the equality of subjects of the law, and the irrelevance of need or welfare to legal questions. Neither of these assumptions accord with the basic normative foundation of labour law. However, it is argued in this paper that the Kantian idea of citizenship provides a much more relevant foundation for labour law. This idea starts from the position of inequality of bargaining power between the parties (employers and employees), and the need to consider the position of individual subjects. It also moves beyond traditional labour law theory by insisting that the law must be involved in promoting not only distribution but also autonomy for individual employees and workers.
Rodgers comments
It is the argument of this article that the centrality of dignity as redistribution to the functioning of labour law has undermined its effectiveness for workers. Ironically, imbuing labour law with dignity as redistribution means that it continues to have the marginal effects that dogs the application of Kantian dignity as autonomy to the labour law scheme (through contract law and employment contracts as slavery). This can be explained in the following way. The normative instinct of labour law relies on two elements: the concepts of ‘inequality of bargaining power’ and ‘labour is not a commodity’. If dignity is seen in terms of distribution there is essentially no separation between these two phenomenon: they both refer to the possibility that workers can suffer disadvantage when they ‘encounter the wheels of commerce’. This implies that labour law functions only as an instance of market constraint to protect ‘vulnerable’ workers from the worst excesses of the market. Labour law becomes concerned with worker protection rather than worker empowerment. The result (it may be argued) is a body of laws which acts only in marginal situations (where the subordinating effect of inequality of bargaining power and commodification of labour are most obvious) and provides no real challenge to market dominance or to the dominance of subordinating structures of law (contract law remains the ‘baseline’).
Viewing dignity in economic terms may also have further undesirable effects for the subjects of labour law. It can mean that labour law deals inadequately with the dignity of workers as autonomous and principled beings. It can deny worker agency: the capacity of workers for principled action and responsibility for those actions. This influences the design of labour law and its outcomes in individual cases, and at the extreme end, can mean that laws are purposefully enacted to constrain the unprincipled and irresponsible (or ‘vexatious) action of workers seeking to enforce their rights. In the UK, the introduction of Tribunal fees for litigants on 29 July 2013 followed this reasoning. The government justified the introduction of Tribunal fees on the basis that this would help the government to allocate resources in a ‘rational’ way which ‘prevents waste through excessive or badly targeted consumption’. The government hoped that the introduction of Tribunal fees would ‘incentivise early settlements’ and ‘disincentivise unreasonable behaviour, like pursuing weak or vexatious claims’. The threat of vexatious claims was not quantified; only the increase in Tribunal claims was mentioned. There appears then to be a disproportionate view of the irresponsibility of Claimant action, repeated in the Chancellor’s claims that action was required to stop companies being ‘sued out of existence’. Indeed, the introduction of Tribunal fees is currently subject to legal challenge on the basis that it unfair for workers.
A more detailed example of these effects in current labour law may be useful. The example selected is that of the operation of unfair dismissal law, and particular the band of reasonable responses test. Unfair dismissal law may be considered to be driven by the ‘basic normative instinct of labour law’ inherited from the classical labour law scholars: to counteract the the inequality of bargaining power between workers (employees) and their employers and the deleterious effects on workers of (capitalist) commodification. This law is also imbued with the dignity as redistribution thesis referred to by Kahn-Freund. The argument proceeds that employers have an interest in maintaining flexibility in employment relations (through dismissing employees as and when they see fit) whereas employees have an interest in maintaining a level of job security. However as a result of the inequality of bargaining power between employer and employee, the employee cannot properly protect his/her interests through the negotiation of the contract of employment. The result is an imbalance of resources which compromises the dignity of workers. Therefore, unfair dismissal law steps in to guarantee some level of employment security for workers, and thereby to tip the balance of resources back in favour of the employee. Unfair dismissal law is also concerned to counteract the processes of commodification brought about by the subordinating processes of capitalism. It is argued that on entering employment relationships, employees trade some security for subordination. There is therefore a social pressure to ensure that there is some reallocation of resources through compensation for this personal submission and dependence. This compensation is provided by unfair dismissal law.
Rodgers concludes
Kant’s work has not been traditionally seen as very useful in the study of labour law. The focus in the legal literature has been on an analysis of the relevance of Kant’s system of legality involving three stages of right: innate right, private right and public right. This system has been particularly influential in relation to the study of private law, where the three stages have been put forward as a (new) normative foundation. Kant’s influence has therefore seeped down indirectly into the study of labour law, as labour law tends to take these private law foundations as a starting point for analysis (even though these starting points may then be criticised). A good example is the doctrine of freedom of contract which is referred to in the adjudication of employment contracts. This freedom of contract doctrine appears to fit will with Kant’s system of right and his corresponding idea of legality. However, there is a limit to the usefulness of these private law doctrines based on the Kantian system of right to the study of labour law. The foundation of these doctrines lies in the equality of legal subjects, and there is no space for any consideration of need or welfare. By contrast, when it comes to the study of labour law, the inequality of bargaining power between legal subjects appears paramount and the need or welfare of these subjects is also considered central to law. The influence of these doctrines has therefore been marginal. Furthermore, although a more in-depth reading of the Kantian scheme of right may suggest that some public interest norms can inform the adjudication of private rights, the application of these norms also provides a limited explanation for the function and operation of labour law. These norms operate only on an ad hoc basis and are vulnerable to inconsistent application and amendment.
As a result, labour law scholars have attempted to design a system of labour law which does not rely on these private law doctrines. The starting point for this analysis has been the inequality of bargaining power between employers and employee brought about by the operation of the capitalist system. On this analysis, the role of labour law is to redistribute power (and resources) to the most vulnerable subjects: the employees. This scheme has not been without its problems. Early labour law theory relied on collective bargaining to provide support to employees (and a level of autonomy in the industrial relations system). By contrast, modern labour law has been designed around specific legal instruments rather than a system of negotiation between employers and trade unions. This has meant that the function of labour law in promoting autonomy has been neglected in favour of promoting dignity as redistribution. The corollary has been a system of law which, at times, has provided insufficient respect for the capacity of individual employees for principled action. Indeed, elements of punishment are increasingly seeping into the operation of labour law (the introduction of Tribunal fees being a good example).
It is suggested in this article that in order to reimbue labour law with a sense of dignity as autonomy, a new system of theorisation is required. The starting point for this consideration, it is argued, is Kant’s theory of citizenship. This system starts from the position of an inequality of bargaining power between private individuals (in line with traditional labour law theory). Kant argues that this inequality of bargaining power can affect an individual’s (employee’s) ability to participate in the functioning of the state (he/she becomes a ‘passive’ citizen). On the Kantian scheme, passive citizenship is not just a problem for the individual but also for the state, as the state relies on the participation of citizens in the making of law. Passive citizens are not able to participate in this way. The state must therefore ensure that conditions are available for the transition from passive to ‘active’ citizenship. This active citizenship ensures the legitimacy of state function and the innate right of all individuals to autonomy.
It is argued that this system is a useful starting point for the development of labour law. As has been mentioned, the Kantian system accords with the argument of the traditional labour law scholars that employment law must begin from the consideration of an inequality bargaining power between employees and employers. But more than that, it develops (or reaffirms) those arguments by placing those individuals not only at the heart of legal function but also at the heart of state legitimacy. The state and the law are intimately connected on this scheme. Furthermore, on Kant’s scheme, the state and the law must move beyond mere redistribution from employers to employees. The state and the law must imbue individuals with the autonomy which reflects their innate right to set their own life goals. This reinforces the legitimacy of law because all three elements of right act in conjunction. It also reinforces the legitimacy of the state because it ensures that as many individuals as possible contribute to the general will; it ensures that the state functions as a ‘union’ of a ‘multitude of human beings under the laws of right’.
