Collective Bargaining and Collective Action

Labour Agency and Governance in the 21st Century?

Julia López López

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509945351
• eBook ISBN: 9781509923175
• Edition: 1
• Topic: Droit
• Subtopic: Droit du travail et de l'emploi

This book offers a unique contribution that examines major recent changes in conflict, negotiation and regulation within the labour relations systems and related governance institutions of advanced societies. The broad scope of analysis includes social welfare institutions, new forms of protest including judicialisation, transnational structures and collective bargaining itself. As the distinguished group of participating authors shows, the accumulation of numerous crucial changes in the interactions of unions, employers, political parties, courts, protestors, regulators and other key actors makes it imperative to reframe the study of collective bargaining and related forms of governance. The shifting dynamics include the growing relevance of multi-level interactions involving transnational entities, states and regions; the increasing tendency of workers and unions to turn to the courts as part of their overall strategy; new forms of solidarity among workers; and the emergence of new populist and nationalist actors. At the same time, sectors of the workforce that feel under-represented by existing institutions have contributed to new types of protest and 'agency'. Building on classical debates, the book offers new theoretical and practical approaches that insert the study of collective bargaining into the analysis of governance, solidarity, conflict and regulation, as they are broadly construed.

Part I

Modes of Collective Action and Solidarity

1

Labour Law in the Age of Populism: Towards Sustainable Democratic Engagement

ALAN BOGG AND MARK FREEDLAND^*

As Lord Wedderburn emphasised throughout his long and distinguished career, labour law is indisputably political.¹ We believe that this discourse of ‘political labour law’ has been valuable in exposing the variety of ways in which personal work relations are sites of conflict over interests and values. Further, that the adjustment of those conflicts should be regarded as political adjustments, located principally within the public rather than the private sphere.

This chapter reflects upon another dimension to ‘political labour law’ which we now regard as of the utmost importance. Our fundamental claim is that sustainable democratic institutions in the polity are dependent upon sustainable democratic institutions in the sphere of work and work relations. In this way, we think that it is time to disrupt the assumption that ‘industrial’ or ‘social’ citizenship is developmentally or normatively posterior to ‘political’ citizenship. It is better to regard these elements as co-equal dimensions of ‘democratic citizenship at work’. To put it bluntly, liberal democratic institutions are now teetering dangerously on a populist precipice; and a significant contributing factor to this political instability has been the spread of rank economic and social precariousness in personal work relations. In this way, the collapse of ‘social’ citizenship threatens the basic stability and integrity of ‘political’ and ‘civil’ citizenship.²

We explore these issues through the lens of populism. We regard the development of populism as a real and dangerous political phenomenon that has significant traction at the current time. Building on recent work in political philosophy and political science, we specify what populism entails as political ideology and as statecraft. The chapter then examines the anti-totalitarian labour law developed by Otto Kahn-Freund. We suggest that there is no straightforward path from the anti-totalitarian restriction of popular participation to the current wave of populism. We then explore the symbiotic connections between, on the one hand, populist politics and, on the other hand, the degradation of personal work relations. We do so by examining some recent examples of populism in labour law within the nation-state, and beyond the nation-state. The chapter concludes by suggesting some possibilities for an anti-populist labour law, building upon Kahn-Freund’s notion of the ‘pluralistic constitution’. This provides a potential basis for sustainable work relations and sustainable democratic citizenship.

I.THE POLITICS OF POPULISM

If the late decades of the twentieth century were the ‘age of neoliberalism’, we now appear to have entered the ‘Age of Populism’.³ In countries as diverse as the United States, Russia, Hungary, Venezuela, Poland, Turkey and Italy, governments described as ‘populist’ now wield political power. More generally, there has been a disintegration of traditional political parties and the rapid emergence of new political parties and movements opposed to ‘elites’ and the political establishment.⁴ These spanned the political spectrum from Left to Right: SYRIZA in Greece, Podemos in Spain, the Five Star Movement in Italy, PEGIDA, or AfD, in Germany, UKIP in the United Kingdom. Recently, the French President Macron has even been heralded as a benign populist antidote to more dangerous forms of populism at large in Europe.⁵ It is timely, therefore, to reflect upon the importance of this shift in the political context, and its potential implications for labour law. In particular, we believe that some precision is necessary if populism is to be useful as an analytical framework. Otherwise, there is a risk that ‘populist’ simply becomes another label to signal general normative disapproval of labour law policy that we happen not to like. The allegation of populism then becomes a cheap rhetorical device. That would be regrettable, not least because we think populism represents a real political phenomenon with its own distinctive contours. Moreover, we believe that the ‘Age of Populism’ has the most profound implications in thinking about the future politics and regulation of work.

Two recent works have engaged with this populist turn in modern political practice, and both provide important insights into the meaning of populism, its causes, and how best to respond to populist mobilisation. In What is Populism? Jan-Werner Müller provides a precise and lucid examination of populism in contemporary political thought and practice.⁶ Specifically, Müller challenges the view that populism is best understood in terms of an orientation that is critical of established elites. As Müller explains, it is possible to be critical of elites without thereby being populist. Indeed, holding elites to account in the democratic process is a virtue of liberal democratic citizenship. While populists are critical of elites, the distinctive mark of populism is its ‘antipluralism’.⁷ In this way, populists do not repudiate political representation of ‘the people’. Rather, populists assert a claim to be the exclusive moral representatives of ‘the people’ as a homogeneous entity. This is ‘a particular moralistic imagination of politics, a way of perceiving the political world that sets a morally pure and fully unified … people against elites who are deemed corrupt or in some other way morally inferior’.⁸ This feature of populism is of the first importance. As labour lawyers, our disposition is often to be critical of established power structures and the role of political and business elites in supporting those structures. All too often, the powerful have invoked ‘populism’ as a de-legitimating rhetoric to protect the status quo from critique. Müller’s work identifies the fallacy of this move and the basis for its rejection.

While populist discourse is superficially democratic – indeed, Müller describes populism as the ‘permanent shadow of representative politics’⁹ – its modalities of governance are antithetical to liberal democratic institutions. The idea of ‘The people’ is understood as a mystical ‘substance’ or ‘spirit’, rather than a genuinely plural or aggregative concept that takes seriously the equality and separateness of persons.¹⁰ Accordingly, those who dissent from the populist’s divination of ‘the people’ are subject to a kind of civic banishment: they are traitors to the ‘real’ people. According to Müller, this repression of pluralism is reflected in the anti-democratic techniques of populist governance: colonising state institutions such as the civil service and judiciary; mass clientelism providing discriminatory benefits to supporters of the regime; and systematic suppression of autonomous sites of resistance in civil society.¹¹ In extreme cases, populist governments may even institute populist constitutions that entrench the political suppression of pluralism.

In The People vs. Democracy: Why Our Freedom Is in Danger and How to Save It, Yascha Mounk mounts an urgent and powerful critique of populist threats to liberal democracy across the world.¹² Mounk identifies two distinctive trajectories within a general pattern of the degradation and decomposition of liberal democracy. The first is ‘democracy without rights’ or ‘illiberal democracy’, which describes a situation where the expanding reach of populist mobilisation interferes with the rights of minorities and undermines the bulwarks of political pluralism. This would be reflected in, among other things, the democratic legitimation of discrimination against those individuals adjudged to be outside the moral community of citizens (often on ethnic or religious grounds); the capture of media outlets and attacks on the free press; and the suppression of ‘foundations, trade unions, think tanks, religious associations, and other nongovernmental organizations’.¹³ It may be that the Polish case is an exemplar of ‘illiberal democracy’.

The second is ‘rights without democracy’ or ‘undemocratic liberalism’, which describes a situation where democratic participation and collective democratic agency are curtailed in favour of technocratic expertise. This would be reflected in, for example, strong constitutional review through an independent judiciary, independent central banks insulated from political accountability, the growth in bureaucratic law-making through secondary legislation, and international treaties and organisations that limit national sovereignty.¹⁴ It may be that the EU is an exemplar of ‘undemocratic liberalism’. While ‘undemocratic liberalism’ ensures that fundamental rights are insulated from the sway of democratic majorities, it is highly vulnerable to populist attacks. The minimisation of popular democratic influence is alienating for citizens, particularly precarious citizens who experience the economic turbulence and social dislocation of a globalising economy. It also lends itself to populist portrayals of technocratic institutions as a corrupt conspiracy of self-serving elites. Mounk provides a wide-ranging evaluation of the causes of these trajectories, as a prelude to examining effective policy interventions to reconsolidate liberal democracy. He discusses the role of social media, the impact of economic stagnation and growing inequality, and the rise of nationalism as a basis of moral community. Each of these elements has been corrosive of liberal democratic citizenship.

While there are certainly differences between Müller and Mounk,¹⁵ both scholars identify populism as a most profound threat to sustainable democratic governance. Their work also enables us to understand the overlapping connections with nationalism and authoritarianism in the practices of populist governance. According to Müller, the logic of populism is not necessarily aligned with nationalism.¹⁶ Certainly, populism depends upon some basis for demarcating the morally pure ‘people’ from the morally debased ‘others’ who stand outside of the political community. While those markers may be based upon nationality and ethnic identity, it is also possible for the ethical community to be defined in other ways such as religion or class-based identities. Still, it is important to acknowledge that even if the overlap between nationalism and populism is contingent, it is highly salient at the current time. For example, Taggart has drawn attention to the alignment of some populist movements with ‘ethical nationalism’ and isolationism in foreign policy.¹⁷ In a similar vein, Mounk has identified ‘exclusionary nationalism’ as a virulent strand in modern populist movements,¹⁸ and he reflects upon strategies to ‘domesticate’ nationalist sentiments into more inclusive forms of civic engagement.

The alignment between populism and authoritarianism is also strong. Populist governance is directed at the suppression of pluralism, and the repressive techniques of governance reflect its antipluralism. It is for this reason that Müller is circumspect about the term ‘illiberal democracy’ insofar as it confers democratic credentials on populist regimes. This is because populist constitutionalism attacks ‘freedom of speech and assembly, media pluralism, and the protection of minorities’.¹⁹ When populism, nationalism and authoritarianism converge, the resulting political constellation is utterly poisonous to sustainable democracy.

Should we not acknowledge the normative difference between ‘Left’ and ‘Right’ populism? That is to say, ‘Right’ populism is especially toxic because it is prone to xenophobic nationalism and authoritarian repression. By contrast, ‘Left’ populism may represent a noble cause in mobilising working people to challenge the forces and structures of neoliberal oppression. In this way, ‘Left’ populism operates as a corrective to the gross deficiencies of representative democracies under modern capitalism. The negative connotations of the populist label provide a convenient rhetorical move for criticised elites to delegitimise the mobilisation of disempowered groups seeking recognition in the democratic process. Progressive labour lawyers should be wary of playing into the hands of political and business elites who might invoke populist anxieties to justify the restriction of collective mobilisation.

We acknowledge the superficial appeal of a positive populism of the Left. As Müller explains, populism has often been aligned with ‘producerism’.²⁰ This ideology pits ‘the pure, innocent, always hardworking people against a corrupt elite’,²¹ and in so doing it elevates work as a source of civic honour and the basis of membership in ‘the people’. The political marginalisation of work and the worker has become so entrenched in liberal capitalism that this political shift to ‘producerism’ is no doubt an alluring one. The rebalancing of political concern with production alongside consumption may be positive. Furthermore, the historical roots of populism in the Russian ideology of narodnichestvo may also account for the normative ambiguities of Left populism at the current time. This ideology represented a faith in the agrarian peasantry as an elevated form of community that provided an egalitarian alternative to the debased character of the tsarist regime.²² This histor...

Table of contents

• Cover
• Title Page
• Acknowledgement
• Contents
• Editor and Contributors
• Introduction
• PART I: MODES OF COLLECTIVE ACTION AND SOLIDARITY
• PART II: COLLECTIVE ACTION AND MULTI-LEVEL AGENCY
• PART III: COLLECTIVE ACTION AND INCLUSIVE GOVERNANCE
• Index
• Copyright Page