Why Do Labour Lawyers Ignore the Question of Social Justice in European Contract Law?
Over recent years, a heated debate about social justice in European contract law has been taking place. Great emphasis is placed on ideological assumptions. For example, the over-individualistic interpretation of European private law, its market-led orientation and the insufficient attention paid to the idea of the protection of the weaker party. This discussion considers the traditional conflict between the meta-principles of market-oriented efficiency and solidarity-based action. The whole debate, it seems to me, now calls for a more rules-based approach. In endeavouring to validate such an approach, this article starts by illustrating the various facets connected to the theme of ‘European contract law’. Then as a preliminary step, I shall briefly examine the question as to why labour lawyers have remained silent and take no part in the discussion on European social contract law. There is ample reason to believe that the contrary is necessary. It has been generally acknowledged that labour contracts are not outside private law—individual contract law in particular—and that it represents one of the most important examples of long term incomplete contracts. The idea of labour law as autonomous is dead and it appears simple to promote the reintegration of labour law into modern social contract law. In the context of the debate on European contract law, three different strategies can be envisaged to achieve this end. The first strategy tests the degree to which provisions under the contractual regime, not all of which are legally binding, effectively meet the needs of the weaker party in the contractual relationship, in terms of his/her security—what might for short be termed the social validity of the contract regime—(the Principles of European Contract Law, the EU rules affecting contract law, etc which are analysed and proposed in the various workshops that are currently examining them), from the specific point of view of labour law. A second strategy is to codify European or Community labour law. Lastly, another strategy is to introduce an intermediate category of long-term social contracts. What makes this last trend particularly significant for the future is that today globalisation is progressively diminishing the income earned from labour contracts and in this sense creating insecurity. In a globalised economy, where levels of remuneration are lower than in the past, the individual's sense of security must be ensured also in the context of other social or long-term contracts (outside the workplace), which enable people to obtain other sources of finance (such as consumer credit, for example), or to make arrangements necessary for living (such as tenancy contracts). A need exists for consumers to be granted similar rights to those which historically have been granted to workers. To take just one example: if the borrower under a consumer credit agreement loses his/her job for objective reasons, or falls ill and is therefore temporarily unable to pay the instalments under the agreement, why should there not be a mechanism which limits the credit-providing institution from terminating the credit arrangement?
Document Type: Research Article
Affiliations: Professor of Labour Law and Comparative Labour Law at the Faculty of Law of the University of Trento (Italy) and Director of the Department of Legal Sciences of the same University.
Publication date: 2008-07-01