Labour law and the limits of dogmatic legal thinking

Abstract

In ?The Limits of the Law (Introduction)?, Claes, Devroe, and Keirsbilck construct a taxonomy of the limits of the law by identifying the functions and characteristics of the rule of law. This chapter has a different approach to limits of the law. It sets out from the idea that limits of the law are limits of mankind. It is the human condition that generates the need for law. It is that same human condition that explains why law is necessarily positively and negatively limited. Though this perspective requires an elaboration on the condition of man, it is neither possible nor the ambition to develop comprehensively such a conception within the scope of this chapter. It is only possible here to indicate some minimum requirements for a realistic conception of the condition of man. Presupposing (self?)consciousness, these can be depicted using six concepts: individual freedom, unicity, scarcity, bounded rationality, interdependency and opportunism. Individual freedom indicates that man has the need to be able freely to determine how he acts in the private and public spheres: Man needs individual freedom to be able to convert his individuality into personality. A society that deprives most or some men of the freedom to become a person neglects this need of man. Personality makes every human unique. The exercise of freedom requires resources. Given scarcity, resources are limited and so too are the facilities to develop personality every man disposes of. The concept of bounded rationality indicates that an individual has limited theoretical and practical knowledge and a limited ability of communicating this limited knowledge to others. Thus, he is at the same time always to a certain extent incomprehensible to others and dependent on them: freedom is a necessary but insufficient condition for man to develop his personality. Bounded rationality implies that man must be embedded in a society ? he is interdependent. Opportunism indicates that man will not necessarily take the common good into account when using his freedom.1 Opportunism allows man to gloss over treating others worse than he would like to be treated himself. In the absence of a mechanism ensuring a just distribution of freedom for all, in the end, none or only few will enjoy the freedom they need and deserve. Law is precisely the mechanism devised to guarantee that the ability to exercise freedom is distributed in a just way, that is, in accordance with the principles of equality and solidarity. Given the human condition, bringing about and maintaining law is accompanied by many obstacles. First of all, one must avoid a too reductionist view on the condition of man when developing legal norms. The various aspects of the human condition must be taken into account. Secondly, given his bounded rationality, man qua law?maker may adopt a wrong analysis of the problems at hand and hence develop the wrong remedies. Yet when he correctly analyses the problem, his opportunism may prevent him from developing a proper remedy. And even when he develops a right remedy for a certain problem, yet more problems may arise than the one solved, simply due to his bounded rationality and the concomitant non?ergodicity of legal norms. The non?ergodicity of legal norms is extended by the fact that man's bounded rationality requires that the law uses simple concepts to structure the complex chaos within human life. The generality of legal concepts and the fact that law must maintain order and security inevitably causes the risk of the law not bringing about the just distribution of freedom it postulated. This is all the more the case since man's unicity brings about different interpretations of legal concepts. Only when this weakness of law is taken into account in the daily application of the law can this limit of the law be remedied. Finally, opportunism implies that man does not necessarily spontaneously abide by the law. This generates the need for a system of enforcing the law. Scarcity and bounded rationality make it impossible to enforce the law fully. This can be remedied by devising techniques that reduce the need for law enforcement. The outline above clarifies in what way some limits of the law are positive, and others, negative. Positive limits of the law correspond to the idea that the law does not limit individual freedom any more than necessary to ensure a just distribution of individual freedom. The law ends where a just distribution of freedom begins. Negative limits correspond to the idea that, because of various obstacles, the law does not always succeed in ensuring a just distribution of freedom. Against this perspective on the limits of the law, this chapter will concisely demonstrate how modern labour law and scholarship has been and remains an attempt to remedy legal conceptions that did or do not sufficiently take man's condition into account, nor were or are able to reduce optimally the obstacles to the good functioning of a legal system. Given the limited scope of this chapter, the approach will be illustrative. First, the origins of modern (Belgian) labour law will be briefly sketched. This will allow a quick demonstration that modern labour law in general remedies a negative limit of the law resulting from the way in which Napoleonic civil law put the principles of freedom, equality and fraternity into operation (section 2). Second, the chapter will focus on the legal conception of collective labour agreements (?CLAs') in Belgium. This will enable an illustration of how the Napoleonic civil law concepts and the all too simple strict divide between public and private law have produced a negative limit of the law. It will be shown how the legal institutionalisation of CLAs overcomes this negative limit (section 3). Third, it will be suggested that the legal institutionalisation of CLAs does not suffice to remedy the negative limits of the law. Their status can be ? and is still ? challenged from inter alia a constitutional and economic law perspective. The principles of any branch of the law serve to ensure a just distribution of freedom. However, when applied unlimitedly and dogmatically, the principles which protect a just distribution of freedom in one matter can disturb the balance when applied to other matters (sections 4 and 5). It will be shown how legal theory can provide the meta?juridical criteria to determine the right balance between the principles of different branches of the law, thus remedying negative limits of the law and enforcing positive limits of the law. © 2009 Springer-Verlag Berlin Heidelberg.