Law

This book investigates the extent to which the European Union intervenes, and should intervene, in domestic labour law. It examines the stated and potential rationales for EU intervention, and argues that there are considerable merits to be derived from separating out the integrationist, economic, and social arguments which have been deployed in defence of EU intervention. It critically considers the competence of the EU to act in this field, and demonstrates that proper regard for the subsidiarity and proportionality principles can contribute to the legitimacy of the EU. The book is informed by the ongoing debate on governance in Europe, and aims to provide insights into the implications of the shifts in policy-making technique. The intention is to provide a framework to enable the reader to think about the role that the EU has, and should, play in this field.

Labour law and social policy have long provided an arena within which key debates over the depth and pace of European integration have taken place. Increasingly, as the European Union's employment policy has matured, employment and economic policy discourses have come to displace discourses around social policy and social law, a displacement which has occurred in tandem with a shift from legislative harmonisation to the use of ‘soft law’ and governance by means of guidelines. This book charts the evolution of the European Employment Strategy and the new forms of governance to which it has given rise. It offers an interdisciplinary exploration of European social law and employment policy, scrutinising the law and economics of labour market regulation in the European context and responding to the economic critique of traditional notions of social protection. Through a detailed examination of the legal and economic underpinnings of the European Employment Strategy, this book outlines the implications of this strategy for labour law, social protection, and industrial relations within the EU. The book also provides a timely contribution to the growing literature on ‘new governance’ in the EU. This innovative form of governance has the potential to forge a middle course through the regulatory choices facing the EU: the choice over the appropriate level of regulation in the EU, whether national or supranational; that over the legitimate role for the state in regulating or deregulating the labour market; and ultimately, the choice between centralised harmonisation and regulatory competition.

Labour law is widely considered to be in crisis, at least by scholars of the field. This crisis has an obvious external dimension—labour law is attacked for impeding efficiency, flexibility and development; vilified for reducing employment and for favouring already well placed employees over less fortunate ones; and discredited for failing to cover the most vulnerable workers and workers in the ‘informal sector’. These are just some of the external challenges to labour law. There is also an internal challenge, as labour lawyers themselves increasingly question whether their discipline is conceptually coherent, relevant to the new empirical realities of the world of work, and normatively salient in the world as we now know it. The goal of this book is to respond to such fundamental challenges by asking the most fundamental questions: What is labour law for? How can it be justified? And what are the normative premises on which reforms should be based? There has been growing interest in such questions in recent years. The current book seeks to take this body of scholarship seriously and take it forward. Its aim is to provide, if not answers which satisfy everyone, at least intellectually nourishing food for thought for those interested in understanding, explaining and interpreting labour laws.

The latest title in the Oxford Monographs on Labour Law series, this study elucidates the general legal rules and principles of the law of unfair dismissal, as well as offering an account of the social, political, and philosophical context in which the idea of protection from unfair dismissal at work has developed and currently operates.

Throughout the industrial world, the discipline of labour law has fallen into deep philosophical and policy crisis, at the same time as new theoretical approaches make it a field of considerable intellectual ferment. Modern labour law evolved in a symbiotic relationship with a post-war institutional and policy agenda, the social, economic, and political underpinnings of which have gradually eroded in the context of accelerating international economic integration and wage-competition, a decline in the capacity of the nation-state to steer economic progress, the ascendancy of fiscal austerity and monetarism over Keynesian/welfare state politics, the appearance of post-industrial production models, the proliferation of contingent employment relationships, the fragmentation of class-based identities and the emergence of new social movements, and the significantly increased participation of women in paid work. These developments offer many appealing possibilities — the opportunity, for example, to contest the gender division of labour and re-think the boundaries between immigration and labour policy. However, they also hold out quite threatening prospects — including increased unemployment and inequality and the decline of workers' organizations and social participation — in the context of proliferating constraints imposed by international financial pressures on enacting redistributive social and economic policies. New strategies must be developed to meet these challenges. These chapters — which are the product of a transnational comparative dialogue among academics and practitioners in labour law and related legal fields, including social security, immigration, trade, and development — identify, analyse, and respond to some of the conceptual and policy challenges posed by globalization.

Are efforts to protect workers' rights compatible with the forces of globalization? How can minimum standards designed to protect labour rights be implemented in a world in which national labour law is more and more at the mercy of international forces beyond its control? The chapters in this volume argue that international agreements and institutions are of central importance if labour rights are to be protected in a globalized economy. This book explores some of the options that are open to governments, civil society, and the labour movement in the years ahead.

The emergence of a ‘labour market’ in industrial societies implies not just greater competition and increased mobility of economic resources, but also the specific form of the work relationship which is described by the idea of wage labour and its legal expression, the contract of employment. This book examines the evolution of the contract of employment in Britain through a close investigation of changes in its juridical form during and since the industrial revolution. The initial conditions of industrialization and the subsequent growth of a particular type of welfare state are shown to have decisively shaped the evolutionary path of British labour and social security law. In particular, the book argues that nature of the legal transition which accompanied industrialization in Britain cannot be adequately captured by the conventional idea of a movement from status to contract. What emerged from the industrial revolution was not a general model of the contract of employment, but rather a hierarchical conception of service, which originated in the Master and Servant Acts and was slowly assimilated into the common law. It was only as a result of the growing influence of collective bargaining and social legislation, and with the spread of large-scale enterprises and of bureaucratic forms of organization, that the modern term ‘employee’ began to be applied to all wage and salary earners. The concept of the contract of employment which is familiar to modern labour lawyers is thus a much more recent phenomenon than has been widely supposed. This has important implications for conceptualizations of the modern labour market, and for the way in which current proposals to move ‘beyond’ the employment model, in the face of intensifying technological and institutional change, should be addressed.

This book argues that a broad notion of ‘personal work relations’ should become the central organising idea for the future development of labour law. This concept is developed by drawing on extensive comparative research of the legal architecture of employment relations in national legal systems and EU law to analyse the traditional model of the contract of employment and the difficulties of using that traditional model to frame modern working relationships. The chapters then present a new model of the foundations of employment relationships, based on the concept of a ‘personal work nexus’, and explore the potential of the book's model in shaping labour law along the lines of the normative goal of ‘personality in work’, and its conceptual building blocks of ‘dignity’, ‘capability’, and ‘stability’. Throughout, the book analyses the interaction of domestic and EU employment law, and discusses the possibility of future legal harmonisation in the area. The book concludes by exploring the potential for a common framework for European employment law, in the context of broader debates surrounding the harmonisation of European private law.

The picture of crime that dominates the popular imagination is one of unambiguous wrong-doing — manifestly harmful acts that are clearly worthy of condemnation. The accompanying picture of the criminal — the thief, the murderer — is a picture of society's failures, to be cast out and re-integrated through a process of punishment and penance. Our understanding of white-collar crime, by contrast, is pervaded by moral and imaginative ambiguity. Such crimes are committed by society's success stories, by the rich and the powerful, and frequently have no visible victim at their root. The problem of marrying these disparate pictures has led to a confusion of the boundaries of white-collar crime. How is it possible to distinguish criminal fraud from mere lawful ‘puffing’, tax evasion from ‘tax avoidance’, insider trading from ‘savvy investing’, obstruction of justice from ‘zealous advocacy’, bribery from ‘log rolling’, and extortion from ‘hard bargaining’? How should we, as scholars and students, lawyers and judges, law enforcement officials and the general public, distinguish the lawful from the unlawful, the civil from the criminal? This study exposes the ambiguities and uncertainties that pervade the white-collar crimes, and offers an approach to their solution. Drawing on recent cases involving such figures as Martha Stewart, Bill Clinton, Tom DeLay, Scooter Libby, Jeffrey Archer, Enron's Kenneth Lay and Andrew Fastow, and the Arthur Anderson accounting firm, this book weaves together disparate threads of the criminal code to reveal a complex web of moral insights about the nature of guilt and innocence and what, fundamentally, constitutes conduct worthy of punishment by criminal sanction.

President Bush's vision of an “ownership society” continues the process of the last three decades by which the defined contribution paradigm has become the primary framework for retirement savings and, more broadly, a fundamental tenet of tax and social policy. In a defined contribution society, the policies more likely to be adopted are those which channel government subsidies for retirement, health care, and educational savings through individual accounts controlled by the taxpayer himself. In contrast, defined benefit arrangements—as exemplified by the traditional pension plan and the federal Social Security system—are less likely to be proposed, adopted or expanded. Individual retirement accounts (IRAs) and 401(k) arrangements are today central features of American life. The growth of cash balance pensions and their cousins—new comparability plans—is best understood as reflecting the prevailing defined contribution ethos. Equally striking is the extent to which the defined contribution format has, in the last several years, reconfigured many state retirement programs. Moreover, individual accounts have spread beyond the realm of retirement savings to other arenas of social and tax policy. Section 529 accounts are today the predominant instrument by which Americans save for college. We are now in the early stages of a comparable transformation of medical coverage—the flexible spending account (FSA), the health reimbursement arrangement (HRA), and the health savings account (HSA) emerging as important devices for financing routine medical care.