Labour Constitutions and Occupational Communities: Social Norms and Legal Norms at Work

This paper considers the interaction of legal norms and social norms in the regulation of work and working relations, observing that, with the contraction of collective bargaining, this is a matter that no longer attracts the attention that it deserves. Drawing upon two concepts from sociology – Max Weber's ‘labour constitution’ and Seymour Martin Lipset's ‘occupational community’ – it focuses on possibilities for the emergence, within groups of workers, of shared normative beliefs concerning ‘industrial justice’ (Selznick); for collective solidarity and agency; for the transformation of shared beliefs into legally binding norms; and for the enforcement of those norms. If labour law is currently in ‘crisis’, then a promising route out of the crisis, we argue, is for the law to recover its procedural focus, facilitating and encouraging these processes.     

Labour Law in a Service World

Drawing on the genealogy of the theoretical thought about services in economic and geographical economic literature, I argue in this article that in today's Service World it is highly important to develop an integrated approach that sees both consumption and production as impacting work relationships within legal thought. The current structure of labour law, which is based on the Fordist model of employment, is centred mainly on the production side, thus creating an incongruity between labour law and services. I propose thinking about work relations through a new framework –‘the nexus of service work’– that incorporates consumerism into the legal thought of work relationships, detaching it from the Fordist model of employment to achieve a more attuned approach to today's Service World.     

A qualitative study of the impact of law clinics on students’ perceptions of emotional labour expectations

The benefits to students of being given some form of clinical legal education are well documented. Research has been conducted in the area of legal education and emotion, emotional intelligence and clinical legal education. There have also been studies which explore emotional labour in the legal profession. However, there is currently no research into the role of clinical legal education in advancing law students’ understanding of emotional labour expectations in the legal profession. This Legal Education Research Network (LERN) funded project aims to fill that gap by examining the contribution law clinics make to the development of law students’ emotion management skills in preparation for entry into the legal profession. The project seeks to achieve this by considering the changes to law students’ perceptions of emotional labour expectations as a result of undertaking this type of clinical legal education. The paper offers insights into the types of emotional labour as well as the perceived drivers of emotional labour, which are regarded as necessary to fulfil the role of the solicitor. The paper will also analyse the potential consequences of performing emotional labour identified by participants.     

There Must Be Some Way Out of Here: The Crisis,Labour Rights and Member States in the Eye of the Storm

This article considers the impact of the economic, social and political crisis on the labour law regimes of two of the Member States of the EU most affected; Greece and Ireland. Both countries have been the recipients of ‘bail‐out’ deals, negotiated and monitored by what has become known as the ‘Troika’ of the European Commission, the European Central Bank and the International Monetary Fund. The article considers the extent to which both countries have been required to make amendments to their labour law regimes as a condition of their bail‐outs. It argues that the changes demanded reflect the basic norm now governing the EU legal order, namely that of ‘competition’; the logic of market integration based on the primacy of economic competition. The article sets the reforms in Greece and Ireland within the broader context of the ‘social deficit’ problem of the EU construction.     

A 'European' Conception of Legal Consciousness: Rediscovering Eugen Ehrlich

This paper discusses the present ‘legal consciousness’ literature and seeks to identify two different conceptions of legal consciousness. Most of this literature originated in the United States, but there has also been a growing interest in issues of legal consciousness in Europe. The use of the term ‘legal consciousness ’ in these European discussions is, however, remarkably different from its use in the United States literature. It is argued that the most commonly used ‘American ’ conception of legal consciousness reflects important ideas of Roscoe Pound and asks: how do people experience (official) law? By contrast, a European conception of legal consciousness, which was first introduced by the Austrian legal theorist Eugen Ehrlich, focuses on: what do people experience as ‘law ’? After both perspectives are applied in a case‐study of a run‐down neighbourhood in the Netherlands, it is concluded that future studies of legal consciousness may benefit from an integration of the two conceptions.     

The Common Law Constitution at Work: R (on the application of UNISON) v Lord Chancellor

This note considers the radical significance of Supreme Court's judgment in R (on the Application of UNISON) v Lord Chancellor (UNISON) on the unlawfulness of tribunal fees. It argues that the decision marks the coming of age of the ‘common law constitution at work’. The radical potential of UNISON lies in its generation of horizontal legal effects in disputes between private parties. Recent litigation on employment status in the ‘gig economy’ is analysed through the lens of UNISON and common law fundamental rights. The note identifies the various ways in which the common law tests of employment status might be ‘constitutionalised’ in the light of UNISON.     

EMU and the Shift in the European Labour Law Agenda: From ‘Social Policy’ to ‘Employment Policy’

This article examines the interaction between EMU and the European Union (EU) employment strategy and its implications for law. It focuses on the importance of EMU as a catalyst in the development of the EU's social and employment policy in the years following the Treaty on European Union in 1992, up to the inauguration of a new employment policy in the Treaty of Amsterdam. In analysing the EU's discourse on labour market regulation, it is arguable that a shift has occurred in the EU's position on the ‘labour market flexibility’ debate: that the EU institutions are more readily accepting of the orthodoxy that labour market regulation and labour market institutions are a major cause of unemployment within EU countries and that a deregulatory approach, which emphasises greater ‘flexibility’ in labour markets, is the key to solving Europe's unemployment ills, along with macroeconomic stability, restrictive fiscal policy and wage restraint. As the EU's employment strategy has matured, this increased emphasis on employment policy has come to displace discourses around social policy. This change in emphasis has important implications for EMU since it signals a re‐orientation from an approach to labour market regulation which had as its core a strong concept of employment protection and high labour standards, to an approach which prioritises employment creation, and minimises the role of social policy, since social policy is seen as potentially increasing the regulatory burden.     

‘What Can You Say, Words It Is, Nothing Else Going’

This essay examines the capacity of language (‘word’) to convey what there is (‘world’). It draws on philosophical thought, which it seeks to apply to law while making specific reference to comparative legal studies, that is, to the investigation of law that is foreign to its interpreter.     

农民平等就业权在《就业促进法》中的缺陷与完善

平等就业权是指劳动者依法享有平等就业机会及其排除各种就业歧视的权利,它既是生存权的延伸和具体化,也是劳动权体系的起点和基础。对农民平等就业权进行立法保护,既有可靠的宪法依据和坚实的理论基础,也有十分重要的现实意义。尽管我国《就业促进法》首次规定了农民平等就业权,但它在具体保护方面仍然存在诸多缺陷,促进就业的有关规定没有涵盖农村劳动者;反就业歧视的规定缺漏较多、可操作性差;法律责任的规定不完备、不匹配。为了有效保护农民平等就业权,必须全面贯彻城乡平等就业制度,进一步完善反就业歧视制度和法律责任制度。     

The Legal Case File as Border Object: On Self‐reference and Other‐reference in Criminal Law

What do case files do? With help of an ethnographic study on the care, maintenance, and use of legal case files in a Dutch, inquisitorial context, we work through Latour's and Luhmann's conceptualizations of law. We understand these case files as enacting and performing both self‐reference and other‐reference. We coin the term border object to denote the way the legal case file becomes the nexus between two worlds it itself performatively produces: the world of ‘law itself’ on the one hand, and the ‘world out there’ on the other. As such, our discussion offers clues for a partial reconciliation of Latour's and Luhmann's conceptualizations of law: while Luhmann's insistence on other‐referential operations assist in showing how law forges an ‘epistemic relationship’ with the realities it seeks to judge, Latour's concentration on the materialities of epistemic practices assists in situating these other‐referential and self‐referential operations.     

Access to Justice and Social Inclusion: The Policy Challenges in Wales

Enhancing access to legal and advice services is a central pillar of the Access to Justice Act 1999. Within the new welfare framework, employment rights come increasingly into focus as the UK government seeks to forge a link between welfare and work. Access to the labour market, and being sustained within it, are seen as major mechanisms for combating social exclusion. Discrimination at work can only thwart these ambitions. The Access to Justice reforms imply an assessment of need and a review of the ways in which individuals are negotiating the available system of redress. This article reports on a study of advice provision in employment discrimination cases in Wales, funded by the Legal Services Commission and the Equality Commissions in Wales. Drawing on the accounts of key providers, individual experiences of advice seeking and available statistical evidence, it explores the opportunities and constraints of the Welsh context and profiles many of the policy challenges posed for the devolved administration. It demonstrates that, despite advances in equalities legislation and policy directives aimed at strengthening people's employment rights, a number of critical obstacles remain for the most disadvantaged groups.     

From Cairo to Jerusalem: Law,Labour, Time and Catastrophe

Following the eclectic itineraries of ‘Near East’ expert, R. M. Graves, this article tells a story of an ongoing Nakba (catastrophe) of small and large legal decisions. Without reducing the human catastrophe of the event of the Nakba (the 1948 Palestinian forced exodus), it engages with it as a legal event that crosses (in this story at least) from Cairo to Jerusalem, from the League of Nations’ era (1920–1946) to the United Nations’ era (1945–), from the governance of labour and gender, to labour partition, and finally to the governance of municipalities through law and expertise. Graves’ relationship to both Cairo and Jerusalem was materialized through different forms of affective legal governance. Graves, who in his own dichotomous words was ‘neither a Zionist nor an anti-Semite’, managed Jerusalem across national lines in the wake of the UN Partition Plan (1947), and as the old empire was withdrawing right before Jerusalem itself became a site of the catastrophe—right before the Nakba.

     

Business Collusion as a Criminological Phenomenon: Exploring the Global Criminalisation of Business Cartels

Over the last dozen years or so there has been a burgeoning of criminal law for purposes of dealing with business cartels in a number of jurisdictions (for instance, the new ‘cartel offence’ introduced under the Enterprise Act 2002 in the UK). The discussion here provides first of all some account of this process of criminalisation, mapping it in terms of jurisdictions and the legal character of this category of cartel offending. It then seeks to explain and account for the phenomenon and more particularly to determine the extent to which it may be seen either as an element of more forceful prosecution strategy, or alternatively as a sea-change in moral perception and evaluation. Put another way, is this a development led by legal policy, or a genuine shift in outlook, which has produced a new legal policy? It will be argued finally that, in a more pragmatic perspective, the success of the criminalisation project in any case depends on the emergence of a genuine sense of ‘hard core’ delinquency, without which effective regulation by means of criminal law is unlikely to be achieved. In this respect, a manufactured sense of moral censure, fostered by prosecutors to facilitate leniency programmes, may (outside the US) eventually prove to be a point of vulnerability in such strategies.     

The Human Transplantation (Wales) Act 2013: an Act of Encouragement,not Enforcement

The Human Transplantation (Wales) Act became law in Wales in September 2013. The Act aims to increase deceased donor organ and tissue donation in Wales by introducing a ‘soft opt‐out’ system to replace the previous requirement of express ‘appropriate’ consent under the Human Tissue Act 2004. Adults dying in Wales (with certain exceptions) will be ‘deemed’ to consent to donation, unless evidence of their objection is produced, and a duty is imposed on Ministers to promote transplantation and inform the public through awareness campaigns about how to choose the deemed status or opt out. Although a welcome development, these campaigns may obscure the effects of deemed consent, especially in the context of generally rising UK donation rates. There may also be problems of legal interpretation and of integration with the ‘opt‐in’ laws in the rest of the UK. In the absence of any statutory duty to retrieve all lawfully donated organs, the apparently restricted influence of donor relatives is likely to remain effectively dominant.     

Badges of Modern Slavery

Notwithstanding the 19^th century formal abolition of slavery as legal ownership of people, modern slavery and forced labour have not been consigned to the past. In fact, their existence is more widespread, and made more difficult to tackle due to the lack of formal, legal criteria. This article suggests that reference to historical institutions reveals seven ‘badges of slavery’ that are helpful in identifying occurrences of modern slavery and forced labour. These are: humiliation, ownership of people, exploitation of the vulnerable, lack of consent, terms and conditions of employment, limits on the power to end the employment relationship, and denial of rights outside the work relationship. These constitute modern slavery, and distinguish it from other instances of exploitative employment relations, however problematic. In addition, even where the label of modern slavery is misplaced, the identification of particular badges of slavery in contemporary employment relations may assist in highlighting their troubling facets.     

Caste Discrimination: A Twenty‐First Century Challenge for UK Discrimination Law?1

Discrimination based on caste affects at least 270 million people worldwide, mostly in South Asia. Caste as a system of social organisation has been exported from its regions of origin to diaspora communities such as the UK, yet despite the prohibition of caste‐based discrimination in international human rights law caste is not recognised as a ground of discrimination in English law. The overhaul of its equality framework and the proposed new single equality act present the UK with an opportunity to align national legislation with international law obligations. The Government's decision not to include protection against caste discrimination in the new legislation leaves race and religion as the only possible legal ‘homes’ for caste. This article considers the argument for legal recognition of caste discrimination in the UK, the capacity of race and religion to subsume caste as a ground of discrimination, and the role and limitations of law in addressing ‘new’ forms of discrimination such as casteism.     

Does accessible technology need an ‘entrepreneurial state’? The creation of an EU market of universally designed and assistive technology through state aid

EU State aid law has sought to enable people with disabilities to obtain employment, yet has not been explicitly included in the toolbox of policy options to improve the availability and choice of accessible technology within the EU Internal market. This seems to be the consequence of an inherent bias against State intervention in the market, which is mostly unwelcome since it can limit open and free competition. This also reiterates the ‘less-aid’ policy and the purely economic approach to State aid professed by the European Commission. Against this background, this article discusses the potential for EU State aid policy to foster both ‘design for all’ and innovative assistive devices for people with disabilities. It seeks to argue that the goal of an EU-wide market of accessible technology can be achieved using EU State aid law. In particular, this article aims to highlight that a more targeted use of EU State aid law can lead developers to increase the production of accessible goods, to adjust or reduce prices and to provide consumers with a greater degree of choice in a greater number of marketplaces. Whilst it adopts a legal approach, this analysis relies inter alia on economic evidence and recalls the pamphlet recently published by Mazzuccato, from which the title of this work has drawn inspiration.     

Consequential Responsibility for Client Wrongs: Lehman Brothers and the Regulation of the Legal Profession

Should transactional lawyers bear responsibility when their competent actions facilitate unlawful activity by their client? Or is a lawyer's only concern to act in the client's interest by providing her with the advice and support she seeks? The high profile failure of Lehman Brothers provides a unique opportunity to explore these questions in the context of the provision of a legal opinion by a magic circle law firm. A legal opinion which, although as a matter of law was accurate, was a necessary precursor to an accounting treatment by Lehman Brothers which was described by the Lehman's Bankruptcy Examiner as ‘balance sheet manipulation’. The article argues that the law's existing understanding of when consequential responsibility should be imposed on those who assist another's wrongdoing provides a theory and a tool‐kit whose application can be justifiably extended to the professional regulation of transactional lawyers.     

Of ‘Landmark’ or ‘Leading’ Cases: Salomon's Challenge

This article seeks to question the two dominant conceptions of ‘landmark’ or ‘leading’ cases in English legal scholarship, using the House of Lords decision in Salomon v. Salomon Co Ltd. – the most famous case in corporate law – as a case study. It argues that neither the first dominant conception of ‘leading’ or ‘landmark’ cases, characterized by the analysis of the intrinsic merits of a case, nor the second, which looks at the historical contexts in which cases were decided, appears sufficient by itself to determine whether a case is landmark or canonical. Rather, we have to look at how the canonicity of a case is constructed by subsequent courts. The article seeks to advance the debate concerning the formation of landmark cases and aims to challenge certain prevailing views on the canonicity of corporate law's arguably most significant case.     

平台用工劳动权益保护的立法进路

我国互联网平台工人数量多达数千万,且增长迅速。平台工人面临身份不明确、工作时间长、收入不稳定、职业伤害保障缺失、算法运行不合理等突出问题。由于平台用工的特殊性,现有劳动法及其司法实践难以为平台工人提供有效保护。近年来,越来越多的国家,包括美国、法国、意大利等对平台工人进行了专门立法。我国有必要出台平台工人权益保护专门立法。平台工人权益保护立法的基本思路是确保符合"劳动者"标准的工人得到劳动法保护,并为一般平台工人提供基本劳动权益保障。立法应通过劳动关系举证责任转移规则,使平台工人身份得到正确归类。平台工人的基本权益内容应根据所有工人应享有的基本权益、平台用工的灵活性以及平台主要依靠算法运行的特点而设计,应赋予平台工人平等就业、职业安全卫生、工资、工时、加入工会和集体协商等方面的权利,以及与算法相关的权利。