By Professor Emeritus Harry Arthurs, Osgoode Hall Law School
For a hundred years, the ILO has championed the cause of social justice, facilitated dialogue amongst its stakeholders, provided intelligent analysis and advice, and undertaken whatever practical on-the-ground measures its Charter and objective circumstances permit. In a century full of miseries and horrors, conflicts and catastrophes, these are remarkable achievements. However, by no means is the ILO able today to ensure workers that their rights will be universally respected, or that they can look forward to a better future. Nor, can other regimes of transnational law, or legal regimes of any description, provide such assurances.
On the contrary: the plight of workers in most countries is dire, their future bleak. Union membership is in sharp decline — nearing the vanishing point in the US private sector; labour and labour-friendly political parties have suffered serious electoral losses in almost all democracies; strikes have become virtually extinct; collective bargaining structures and regimes of labour protection have been allowed to rust out and are no longer fit for purpose; labour’s share of GDP is declining; an increasing proportion of the labour force is in precarious or part-time work; job tenure is shrinking and economic insecurity is growing; and the welfare state is being dismantled in the name of austerity and fiscal responsibility. Yes: there are exceptions here and there — but that’s the general picture, a very grim picture for workers.
What has caused this state of affairs? I’ll name the usual suspects: globalization; technology; virulent opposition to collective bargaining by employers and the governments they have bought and paid for. And then there are the not-so-usual suspects: the ideological and intellectual ascendancy of neo-liberalism amongst policy makers; the collapse of working class identity, culture, solidarity and militancy. Whatever the cause, this is clearly a moment in history when workers have to resist, have to defend themselves. The question is: “how?”
Quite possibly labour’s situation is hopeless. However, most labour lawyers are unwilling to acknowledge this. Since law is what we know and law is what we do, we tend to put our faith in one of four innovative legal strategies.
The first and most conventional strategy involves the tweaking of existing legislation and judicial doctrine. There are potential short-term, tactical gains in such an exercise. However, such gains are likely to be modest at best because changing the law leaves the deep structures of political economy untouched. And even modest gains are difficult to achieve because those same structures limit what’s politically possible. I speak as someone with the scars to prove it. I’ve chaired several such projects, worked on several more, and can testify from personal experience: despite good intentions and good ideas, labour law reform won’t take us very far unless the present configuration of political and economic power is reformed first.
The second strategy involves the constitutionalization of labour rights. After a disappointing start, over the past two decades or so, Canada’s Supreme Court has mounted an impressive effort to protect the right of workers to organize, bargain, strike and picket under the Charter of Rights and Freedoms. While some of its decisions have been unclear, and others unpersuasive, I have to say that in general the Court has done a remarkable job in rebuffing attempts by the legislature and the executive to diminish workers’ rights and disregard their interests. And I will add that this Charter-driven engagement with labour law has had a surprising side effect: the Court has become increasingly pro-worker in non-Charter cases, including those involving judicial review of labour tribunals and individual employment rights. All to the good. But remember: during these same two plus decades of relative success in the courts, labour has suffered all the practical setbacks I listed at the beginning of my talk.
A third strategy, a folly of my own, is to imagine what would have happened if labour law had never been invented, if instead we had developed something that I call “the law of economic subordination and resistance”. Using general principles, even constitutional principles, we would have created a repertoire of legal strategies that all economically subordinate groups – not just workers — could use to assert countervailing power against economic oppression. The attraction of treating other groups like workers—farmers, apartment renters, coffee shop franchisees, independent contractors — is that they might learn to work together both legally and politically. I still think that this is a good idea, but at present, it’s nothing more than a thought experiment. Its moment might have come during an earlier economic crisis, like the Great Depression of the 1930s or the crash of 2008; but that moment has now passed.
Which leaves the fourth strategy: the transnationalization of labour law. This has certain attractions, especially at the level of legal theory. It aligns labour law with the long postwar trend to transnationalize human, social and political rights more generally. It acknowledges and builds upon labour law’s significant experience with non-state normativity. It restores the territorial congruence of political and economic power that globalization so effectively dislodged. It provides a new legal regime that supersedes or supplements local labour law systems that either never took root, or have ceased to function effectively. And above all, the transnationalization of labour law provides new perspectives on national labour law.
In theory, then, there is lots to recommend transnationalization as a strategy; but history reminds us that there are some things it cannot accomplish.
Let’s go back 100 years to the beginnings of the ILO. In 1919, the world was not just doing its best to build a lasting peace, following the end of the Great War. It was also grappling with the deep contradictions of capitalism. The Bolshevik revolution of 1917 was just the most dramatic example of the discontent that bubbled up from the lower classes in most advanced economies. Workers were revolting in Russia, in Germany, in Hungary, in Bulgaria, in other European countries. Industrial turmoil was spreading across the anglosphere — the Winnipeg General Strike, the Easter rebellion in Ireland, transport and dock strikes in Australia and the UK. Even America was not immune to the virus of worker discontent: Seattle was shut down by a general strike; steelworkers brought Pittsburgh to a standstill; policemen walked off the job in Boston. How could a peaceful new world order be created following the Great War when class war was raging on all sides?
Some countries mobilized their armies, police forces and vigilante militias to shut down worker revolts. This is what happened in Winnipeg, in Seattle, in Berlin. But as a complement or as an alternative to repression many states acknowledged the need to address the concerns of working people, to attend to long-neglected issues of social justice. Some 20 European countries, for example, adopted state-of-the-art constitutions that proclaimed new regimes of labour and social rights, and in many cases, established new institutional arrangements to ensure that workers’ rights and interests were protected. That same strategy — to damp down radical eruptions, to ward off revolution, to provide peaceful paths to social justice — led in 1919 to the establishment of the ILO, the transnational counterpart of the constitutional reforms that were being adopted in so many states.
Would transnationalization save labour law? Alas, by 1940 every single one of those twenty new European constitutions had collapsed under pressure from the Great Depression, fascist putschesor foreign invasion — or all three. So too those state-of-the-art national labour law regimes. So too the labour movements that supported them. As for the ILO — the very inspiration, instrument and incarnation of transnational labour law — it was forced to flee Europe and seek refuge here on the McGill campus.
As the second world war neared its end, as the defeat of the Axis powers seemed more certain, labour law again experienced a moment of optimism. Constitutions were re-written as they had been after the first war world war; progressive labour laws were reintroduced; labour movements revived in both their political and industrial incarnations; a broad consensus emerged in many countries in favour of the welfare state, despite differences concerning its cost and design. As in 1919, these positive developments were driven in part by a genuine desire to advance the cause of social justice, but also in part by a desire to divert workers from radicalism and revolution. And as in 1919, transnationalization after 1945 complemented national developments, this time in the form of a spate of UN declarations and covenants, including the ILO’s 1944 Declaration of Philadelphia. This Declaration helped to shape the so-called “postwar compromise” under which workers in most advanced market economies came to enjoy a somewhat fairer share of wealth and power.
That said, I am not sure how much the ILO actually contributed to on-the-ground renewal of labour rights and influence. Clearly, the ILO did provide invaluable technical assistance to post-colonial and developing countries in shaping their labour laws and, to some extent, their public policies and institutions. On the other hand, the cold war tensions between the American-led “west” and the Soviet-dominated states largely neutered many of the ILO’s more ambitious projects from the 1940s right through to the 1990s. By the time those tensions had dissipated, neo-liberal globalization had replaced both the old imperialism and postwar anti-communism as an ideology and as the dominant force in the economies of both developed and developing economies.
The ILO’s response to neo-liberal globalization was at most modestly successful. It did develop a higher-order intellectual critique of globalization and, here and there, managed to animate, fund or reinforce local, lower-level projects of resistance and reform. However, if you were to look to transnational law to rescue labour from its present travails, you would not find the ILO’s history reassuring. I say this with great regret: like the other three legal strategies I have mentioned, transnational law has not saved workers — cannot save workers — from the particularly virulent version of global capitalism they confront today.
What — if anything — will save them?
The only way to revise unequal relations of power, I’m afraid, is to bring countervailing pressure to bear on governments, corporations and other holders of power. Countervailing pressure in all its forms: economic and political, intellectual and social. Countervailing pressure in all possible venues: on the streets and on picket lines, in the social media and in parliamentary elections, on the shop floor and in scholarly publications. Countervailing pressure from all subordinate or subaltern communities: from workers and consumers, from social movements and small businesses. But there’s one big problem with this prescription: for all the reasons I’ve cited — globalization, technology, the collapse of working class solidarity and so on — this is a moment in history when countervailing pressure is especially hard to organize.
Nonetheless, neoliberal globalization has recently begun to encounter formidable resistance. It is resistance from below, resistance in which workers play a key role, resistance in which workers’ concerns, and the concerns of other disenfranchised groups are central. After my pessimistic analysis, you will be glad to hear this news. Well, curb your enthusiasm. The cure for neoliberalism may be worse than the disease. The formidable resistance I mentioned comes not from the ILO, not from the liberal democracies that are its main supporters, not from trade unions or responsible business people with a commitment to social justice. The resistance has been organized by the insurgent forces of unilateralism, of nationalism, of xenophobia: the forces of populism. Its public face is that of Marine LePen and Nigel Farage, its institutional form is that of illiberal democracies like Hungary and Poland, its Pantheon is populated by the likes of Roberto Bolsanaro and Donald Trump, its distinctive costume is the gillet jaune, and finally, I’m sorry to say, its rank-and-file comprises millions of workers and former centre-left voters.
The new populism has little time for embedded liberalism, the principles that supposedly animated the postwar world order, the ILO and a broad swathe of political parties and social movements. The new populism does not doubt that free markets are associated with democratic freedoms. However, it values neither of these. Brexit, the renegotiation of NAFTA, the US tariff wars against Canada and China: these are supposed ultimately to benefit British and American workers. The anti-immigrant wall along the US-Mexico border, the exclusion of Polish plumbers and Romanian fruit pickers from the British labour market, the brutal treatment of migrants and refugees in Italy: these are all meant to preserve jobs for home-country workers and to solidify the working class voting base of populist parties. And the rage against foreigners, the bourgeoisie and bo-bosis both an cri de coeurby French workers that they have been “left behind” on the periphery of the economy and society, and a defence of the welfare state against Macon’s attempt to shrink it.
So now the working class is rising up aggressively across the advanced economies of Europe and the anglosphere, but this is not the same virtuous working class the ILO was meant to protect and pacify, not the working class whose rights labour law was intended to establish and defend, not the working class which transnational law hopes to endow with voice and agency.
No: resistance to globalization is currently being led by the populist evil twin of the virtuous working class. Some might argue that the virtuous working class never did exist except in the imagination of labour lawyers or that it always co-existed alongside its populist evil twin. Some might contend that the evil twin abandoned liberal values, democratic institutions and progressive politics because unions, centre left parties and a whole cadre of experts and policy makers failed to make good on their promises. Some might predict that the ascendancy of the evil twin over the virtuous working class will end once workers realize that they have been duped by Trump and his ilk. (We have to assess this prediction in light of recent research that suggests that when populist governments take power, they generally do reduce economic inequality.)
All of these hypotheses need to be explored. However, we must first focus on the most urgent question for anyone who wants to rescue labour and labour law from their present crisis. Let me frame the problem this way: do we salute the new populism for its success in mobilizing workers to resist neo-liberalism? or do we shun populism for its disregard of human rights, democratic values and expert analysis that we have always regarded as the oxygen which enables labour law to breathe? How we answer this question may well determine whether the ILO celebrates its bicentenary, whether a hundred years hence labour law and transnational law will still be categories of legal analysis and domains of legal learning, whether the very concepts of “the working class” or “labour” will still be found in our intellectual tool box in 2119.
Harry Arthurs, “CAN TRANSNATIONAL LABOUR LAW RESOLVE THE CRISIS OF LABOUR?” Canadian Law of Work Forum (March 12 2020): http://lawofwork.ca/?p=11950
This post is the text of a speech given by Professor Arthurs on April 11 2019 at McGill University as the the ILO Centennial Seminar on the Transnational Futures of Labour Law. It was provided to Canadian Law of Work Forum by Professor Arthurs for publication.