Daunting Enterprise of the Law: Essays in Honour of Harry W. Arthurs 9780773548916

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t h e dau n t i n g e n t e r p r i s e o f t h e l aw

The Daunting Enterprise of the Law Essays in Honour of Harry W. Arthurs

Edited by Simon Archer, Daniel Drache, and Peer Zumbansen

McGill-Queen’s University Press Montreal & Kingston • London • Chicago

©  McGill-Queen’s University Press 2017 i sbn i sbn i sbn i sbn

978-0-7735-4889-3 (cloth) 978-0-7735-4890-9 (paper) 978-0-7735-4891-6 (eP DF ) 978-0-7735-4892-3 (eP UB)

Legal deposit first quarter 2017 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. Funding has also been received from the Osgoode Hall Law School. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication The daunting enterprise of the law: essays in honour of Harry W. Arthurs /  edited by Simon Archer, Daniel Drache, and Peer Zumbansen. Includes bibliographical references and index. Issued in print and electronic formats. i sbn 978-0-7735-4889-3 (cloth). – is bn 978-0-7735-4890-9 (paper). – i sbn 978-0-7735-4891-6 (eP DF ). – is bn 978-0-7735-4892-3 (eP U B ) 1. Arthurs, H.W. (Harry William), 1935–. 2. Labor laws and legislation – Canada. I. Archer, Simon, editor II. Drache, Daniel, 1941– editor III. Zumbansen, Peer, editor K E3247.D 39 2017 K F3457.D 39 2017

344.7101

C2016-905946-4 C2016-905947-2

This book was typeset by Marquis Interscript in 10.5 / 13 Sabon.

Contents

Acknowledgments ix Abbreviations xiii

Introduction: The Daunting Enterprise of the Law Simon Archer, Daniel Drache, and Peer Zumbansen 3 pa r t i   t h e p l u r a l i z at i o n , d e c e n t r a l i z at i o n , a n d t r a n s n at i o n a l i z at i o n o f l a b o u r l aw

 1 The Singular Pluralism of Harry Arthurs  37 Brian Langille   2 A Yankee Gets Schooled in King Arthurs’s Court: Canadian Labour Law as a Cautionary Tale  49 Cynthia Estlund   3 The Once and Future Industrial Citizen  62 Gregor Murray   4 A Tale of Two Harrys: The Life and Demise of Industrial Pluralism in Canada  75 Eric Tucker pa r t i i   l a b o u r l aw ’ s p r e c a r i o u s infrastructures

  5 Defining Labour Standards: Harry Arthurs’s Beau Risque 93 Gilles Trudeau   6 Formality and Informality in the Law of Work  109 Kerry Rittich   7 Mapping Labour Law With, Within, and Without the State  124 Mark Freedland

vi Contents

pa r t i i i   l e g a l o r d e r i n g ’ s n a r r ow l e d g e

  8 Dancing with Dicey: A Tentative Embrace of Judicial Review  137 David Dyzenhaus   9 Administrative Justice in Arthurs’s Court  149 Lorne Sossin 10 Investor Rights and the Judicial Denial of Neo-Liberal Constitutionalism 169 David Schneiderman pa r t i v   t h e t r e e o f k n ow l e d g e o f   p ow e r

–

the axe

11 “Imagination, Determination and Passion”: A Heroic Agenda for Legal Education  189 Robert W. Gordon 12 The State of Legal Scholarship and Graduate Legal Education in Canada  199 Liora Salter 13 “Globalization” as Framing Concept: Some Implications for Legal Education  218 William Twining pa r t v   c i t i z e n s a n d m a r k e t s

14 Workplace Law without the State?  233 Kevin Banks 15 Reform in Small Steps: The Case of the Dependent Contractor 244 Guy Davidov 16 Labour Markets Should Be Judged Innocent until Proven Guilty 258 Morley Gunderson pa r t v i   t h e f r o n t i e r o f l a b o u r l aw ’ s u n c e r ta i n f u t u r e

17 Labour Law and the Political Economy of Inequality  271 Michael Lynk 18 “A New Thing: Shall Ye Not Know It?”: On Living Metaphors in Transnational Labour Law  286 Adelle Blackett 19 Inequality, Gender Violence, Human Rights  298 Sally Engle Merry

Contents vii 

20 Labour Law and Its “Last” Generation  307 David Doorey and Ruth Dukes 21 The Daunting Challenge: Economic Justice for Subordinated Groups 315 Katherine V.W. Stone pa r t v i i   m i l e s to n e s , i m p e r f e c t f o r e s i g h t , a n d f o r m at i v e b e g i n n i n g s : t h e m a k i n g of a legal realist

22 Harry Arthurs: The Law Student Years  327 Martin Friedland 23 Confronting the Dragon of Globalization: Harry, St George, and Me  341 David M. Trubek 24 Reading Landscape and Power  351 Bruno Caruso

An Authoritative Bibliography of Harry Arthurs’s Academic and Other Writings  363

Contributors 377 Index 381

Acknowledgments

As editors, we would like to thank those scholars who took their time and dedicated their minds to engage with, revisit, reread, and rediscover Harry Arthurs’s wide-ranging and thought-provoking scholarship. And so, in this regard, our first thanks must go to our contributors, to whom we are forever grateful for having joined us in this project. But we are left feeling that our “first thanks” should really go to the person without whom we would not have a liber amicorum, a group of contributors, a collection of wonderfully smart and engaging essays on “The Daunting Enterprise of the Law.” So, then, our thanks is, above all, to you, Harry. Thank you! But, where, how, and who is Harry, really? Is he really only – and centrally – the person whom we have tried to capture through his professional and scholarly career, through his lectures, articles, books, and other publications? Is he really only – and equally importantly – the teacher, mentor, supervisor, and friend who has been leaving such traces in so many students’, friends’, colleagues’, and other people’s lives? Is he really only – and just as significantly – the ideagiver, the instigator of intellectual unrest, of political reform and imagination? Or is he not really all this – and yet so much more? Is he not also the person of flesh and bones? The person who, in the midst of – but not disconnectedly from – the busy-bee-natured flow of education, career, and movings, met and married the extraordinary Penny? Is he, are he and Penny, not also the people who brought up two wonderful sons, Joshua and Gideon, now living in West Virginia and Quebec respectively, and with whom Penny and Harry share the bounty of a new generation, of new life and new wondrous, unpredictable directions? How to give expression to those dimensions of a great scholar’s and person’s life? And, how to thank Penny,

x Acknowledgments

Joshua, and Gideon adequately for their utmost patience and generosity in supporting this project – not only by providing us with gems of biographical detail, but, just as importantly, by keeping it all from Harry’s all-seeing eyes – until we were able to present the result of our work (along with the cake, speeches, and smiles) to him for his eightieth birthday on 9 May 2015 at Massey College in Toronto? Thank you, Penny, Joshua, and Gideon! As any reader will no doubt have gathered by now, this Festschrift in honour of the innovative œuvre of Harry Arthurs took on a miraculous life of its own, ever since the idea emerged several years ago. The editors are immensely grateful to the contributors to this book for their intellectual participation in the project, their patience in going through the editing process, and, above all, their generosity and willingness to uncover the different strands in Arthurs’s scholarship and to place them under new and critical bright lights. Each author in the book took it upon himself or herself to strike a truly particular tone, to interrogate diligently an important aspect in Arthurs’s work, to enter into an actual dialogue with him, while bringing to the fore the context, the history, and its grand thematics. The celebration in May was generously sponsored by Osgoode Hall Law School under the able leadership of Dean Lorne Sossin. We also want to give special thanks to Anita Herrmann, Osgoode Hall, for so effectively handling the organizational side of the event. The occasion itself took place in the wonderful confines of Massey College in the University of Toronto, and we are grateful to Hugh Segal, its new Master, and all supporting staff at Massey for opening their doors to us and for making the celebration such a very memorable one. We were blessed by a number of wayfarers and friends of Harry Arthurs, who offered their remarks and honours before the unveiling of the book’s table of contents. In particular, we are grateful to Professor Martin Friedland for speaking at the “fest” alongside Daniel Drache on behalf of the editors’ team, and to Dean Sossin for his wonderfully gracious role as master of ceremonies and moderator. We are grateful to Jacqueline Mason and everyone at McGillQueen’s University Press for their enthusiasm and immense support of this project, both right from the start and throughout the whole editorial process, and to the two very insightful anonymous reviewers. Once again, we were able to count on the editorial expertise of Chris Engert, who made sure that the final manuscript was in shipshape form. Financial support for the editorial work was generously

Acknowledgments xi 

provided by King’s College London, The Dickson Poon School of Law, Peer Zumbansen’s new academic home, and is hereby gratefully acknowledged. Further critical support for the publication was provided by Osgoode Hall Law School, York University. The inspiration for this project came from no one but from Harry Arthurs himself. His work over these many years, his tremendously creative, timely, and influential contributions to legal theory and labour law in Canada, to law reform and legal education efforts both domestically and transnationally, are a model for all of us. This book is but a small token of appreciation and of our respect and admiration. Simon Archer and Daniel Drache, Toronto; Peer Zumbansen, London 30 March 2016.

Abbreviations

aba American Bar Association a e c l Atomic Energy of Canada Ltd aoda Access for Ontarians with Disabilities Act atl as Association of Transnational Law Schools b it Bilateral Investment Treaty b s e bovine spongiform encephalopathy (mad cow disease) canl ii Canadian Legal Information Institute c cp i Charter Committee on Poverty Issues c ia r Canadian Institute of Advanced Research c n sc Canadian Nuclear Safety Commission CoC Council of Canadians Canadian Union of Public Employees c u pe c u pw Canadian Union of Postal Workers d b defined benefit d c defined contribution ec b European Central Bank efc a Employee Free Choice Act fc a Federal Court of Appeal fi pa Foreign Investment Protection Agreement g att General Agreement on Tariffs and Trade i cs id International Centre for the Settlement of Investment Disputes ilc International Legal Center i l o International Labour Organization i mf International Monetary Fund i r industrial relations llr n Labour Law Research Network

xiv Abbreviations

lsa Law and Society Association lsat Law School Admission Test ma i Multilateral Agreement on Investment mnc multinational corporations na f ta North American Free Trade Agreement New Democratic Party / Nouveau Parti Démocratique nd p n go non-governmental organization nl r a National Labor Relations Act (United States) nl r b National Labor Relations Board (United States) oe c d Organisation of Economic Co-operation and Development rsc Revised Statutes of Canada S.Ct. Supreme Court (United States) sars severe acute respiratory syndrome Supreme Court of Canada s cc tin a there is no alternative Third World Approaches to International Law twa il up s United Parcel Service wage ne t   Work And Global Economy Network World Trade Organization wto

t h e dau n t i n g e n t e r p r i s e o f t h e l aw

Introduction: The Daunting Enterprise of the Law Simon Archer, Daniel Drache, and Peer Zumbansen Toronto, Canada, and London, UK

1 ways o f s e e i n g

For the attentive reader of Harry Arthurs’s insightful scholarly work, his original engagement with labour relations and globalization is nothing less than striking. Arthurs appears first as a scholar, an observer, a public intellectual whose work is always carried out with analytical resolve and theoretical purpose. But first and foremost he sees things in a particular and inspiring way. Where one lawyer sees leverage asymmetry between collectivebargaining adversaries, Arthurs sees the persistent rise of inequality. Where another lawyer sees the growing prevalence of the privatization of public goods, he sees a longer-standing dynamic of a shrinking state and the cutting of government services. Where a mainstream expert sees globalization as an unstoppable force constraining the regulatory capacities and policy spaces of nation-states, he points to the local, regenerative political agency of non-scripted actors. Where other experts accept fatalistic explanations of labour’s deep decline, he traces the origins and disruptive consequences of globalization back to political choices made by political elites within the domestic context. Where other theorists see a compartmentalized, muchweakened labour and employment law, he points to the bigger picture of unfettered global finance, the transformation of compliant states, and the corrosive effects of hyper-liberalism.

4 S. Archer, D. Drache, and P. Zumbansen

These introductory remarks about Harry Arthurs’s powerful ways of seeing may give a first indication of the vast range of interactions, challenges, and interventions that Arthurs has launched over the years. In the best critical tradition, Harry Arthurs has consistently pointed us to the essential defining context, the wider circumstances, the beforeand-after that shape a case, a problem, and a conflict. Where others might offer description, he shows points of entry for a sustained critique, for alternative accounts, for counter-narratives and counterproposals. In short, ways to examine human agency or its absence, particularly from the bottom up, but also from top-down public policy intervention. This recurring emphasis on the need to be alert, informed, and engaged is never exuberant and perhaps never fully confident in the belief of success. It is, instead, reflective and cautiously pessimistic – some may even find it dark or brooding. This, however, would be an unfair conclusion: it is, and indeed it remains, bold in its ambition and acuity; his vision of the law is of a rich, diversified, multi-layered social practice in modern society. This is why it may be useful to think of “the daunting enterprise of the law” – an embedded concept which, we suggest, can be drawn from his work – as a kind of shorthand to encapsulate much that he has written with verve and critical understanding about the consequential power of legal ordering and the transformative dynamics of globalization.1 This collection, offered to him on the occasion of his eightieth birthday on 9 May 2015, is intended to highlight and, indeed, to celebrate and pay homage to the breadth of intellectual engagement with the world that marks his scholarship, his institutional achievements, and his policy leadership. The task, then, for anyone to trace, to organize, or even just to map all of these activities is considerable. What we hope to do in this introductory chapter is to explore the central themes in Arthurs’s œuvre, consisting now of nearly sixty years as a scholar, practitioner, institution-builder, reformer, educator, mentor, collaborator – and prolific writer and public speaker. With the reader’s indulgence, we have an important story to tell. 2 p r e c u r s o r s a n d f i l i at i o n s

In any biography, it is tempting to look for early signs, for origins, for beginnings; in other words, one hopes to be able to identify precursors and filiations. One way of approaching this task is to trace

Introduction 5

back the celebrated scholar’s steps, regardless of how well they might be known and offer themselves as adequate testimony, if not evidence. Thinking back to his law studies at the University of Toronto Faculty of Law, Arthurs recalls that, just a few years prior, in 1955, the faculty of Osgoode Hall Law School had left during a  “ten minute stroll,” which “became the mythic Long March of Canadian Legal Education” to join the Faculty of Law at the University of Toronto. Finding Osgoode to be too rigidly in the hands of the profession, they struck out to more independent positions within the university.2 Not long after, Arthurs would immerse himself in the process of Osgoode Hall Law School’s transformation from a vocational trade institution dominated by the profession to a  forward-looking and critically minded academic undertaking at York University. Arthurs contrasted these academic entrepreneurs’ ways of thinking with those found among the then-contemporary judges: As time went on, I occasionally sensed that judges saw things in light of distinctive professional values and perspectives, had personal ideologies and political agendas, and that these – not logic, not legal rules, not social justice – tended to shape decisions.3 This moment may have been pivotal for Arthurs: All of this serves to explain that I was a law student during one of the most dramatic episodes in the history of Canadian legal education, at a crucial juncture in the debate over whether law should become a “normal” university discipline, free to respond to new ideas and influences, to experiment with new pedagogies and programmes, to transform not just academic instruction in law but our understanding of law’s intellectual premises and social effects and, ultimately, the practice, administration and content of law.4 At the University of Toronto’s Faculty of Law, Arthurs studied under several major figures: Bora Laskin, pioneering labour expert and later Chief Justice of the Supreme Court of Canada, and Cecil Wright, dean of the University of Toronto, Faculty of Law, a tempestuous, overbearing, gifted figure in the Canadian legal establishment.5 Later, he went to Harvard as a graduate student and studied

6 S. Archer, D. Drache, and P. Zumbansen

under the charismatic figure Archibald Cox, whom Richard Nixon peremptorily fired as Special Prosecutor in the investigation of the Watergate break-in at the Democratic Party headquarters. But these dates and figures do not provide a sense of what Arthurs was working against. In the 1950s, the University of Toronto still had a quota system for Jewish students in medicine and engineering.6 In law, there were other barriers that functioned like a quota system. Aspiring lawyers from outside of Toronto without contacts or whose gender or race put them outside the mainstream were unable to find articling positions with leading Anglo-Canadian firms. Like many Jewish students of his time, Arthurs was cast in the role of the classic “ethnic outsider,” which unintentionally gave him a unique perch from which to map and track the dramatic changes to legal ordering that were occurring all around him in the 1960s and 1970s. Like many Jewish students of his time, he belonged to Jewish organizations such as Hillel, which were quite conventional and useful for meeting other Jewish students, although he was a secular Jew eager to be part of Canadian society. He quickly developed a taste and talent for the daunting enterprise of the law, and its dual roles – society’s “night watchman” and its “democratic leveller.” To put it in terms of political theory, the law has an impossible mandate to reconcile a Rousseauian impulse for community with a Hobbesian imperative for security. The evolution of this vision of labour law would take many more decades of intense reading, researching, and teaching, and a hectic outpouring of articles. In this context, regardless of the exact premonitions, there was no better place for an ambitious young academic mind to study a growing, vibrant industrial relations system that contained a vision of modern social democracy based upon worker participation, fairness, and opportunity.7 3 w h y i n d u s t r i a l r e l at i o n s ?

If asked, many lawyers and most others will say that the important legal problems of the day are constitutional, perhaps those involving civil liberties or criminal cases. Most would not pick “the labour relations system.” And perhaps they would be right. But if we look at it more closely, in its historical, social, and political context – an approach to legal scholarship that has become synonymous with

Introduction 7

Harry Arthurs – we can discern the reasons why, in fact, the labour relations system, and its attendant tensions, institutions, actors, and logics, should perhaps be seen as part of the “real constitution” that is shaping fundamental problems of law in society as we know it and as we would want it. It is fundamental in two ways: fundamental to understanding the way in which law works in our society, a sociological high-water marker, but even more important, fundamental to ways in which our laws could work – the aspirational, normative task that asks so much of law and that only on rare occasions results in substantive change. In this historical perspective, it is easier to see how and why labour relations could form the foundation of a career as a legal scholar. The key biographical fact is that Arthurs was present at the “moment of creation” of the industrial relations system in Canada (and across the industrialized world). For those living through these tumultuous events, it was a revolution in word and deed that gave labour new rights and leverage in a capitalist’s world.8 (Twenty years later, he was present at the “second coming” of laissez-faire capitalism that would soon be known as neo-liberalism.) Major reforms in the labour relations system took place in the early part of the twentieth century, culminating in the formalization and codification of the Wagner Act model of industrial relations in the United States in 1933 and in Canada in 1944.9 Labour relations systems were one of the pillars of the emerging welfare-state systems in North America and Europe, along with progressive taxation, social insurance and pensions, and public programmes in health care and insurance. For ­better or for worse, labour relations systems were the way in which twentieth-­ century democratic capitalism resolved the conflicts between the growing working class and the forces of capital within a newly emerging welfare state. The spread of collective bargaining and a sophisticated (if much fought-over, litigated, and contentious) industrial relations system took gradual shape and purpose.10 It is important to recall that regularized collective bargaining spread upward pressure on wages for those lucky enough to be in the mass production industries (auto, steel, textiles, transportation, food processing, communications) and the bedrock of the Canadian economy, the mining and resource sectors.11 This pressure was extended to the public sector in the late 1960s.12 Arthurs’s signature article on the industrial relations revolution, on the extension of industrial

8 S. Archer, D. Drache, and P. Zumbansen

democracy into the workplace, captures the dramatic new optimistic spirit of the age: Now we have entered a phase where the operation and extension of these freedoms have created conflicts within and beyond the industrial community. For example, freedom of association is seen to collide with freedom to abstain from association. Freedom of economic action in industrial warfare has produced casualties amongst non-combatants and neutrals. Yet, on balance, the labour relations acts remain a “bill of rights” which secure an ordered liberty in industry.13 The promise of industrial democracy seemed to be a system without limit at the time, whatever its shortcomings. Harry Arthurs, still in the pink of youth at the age of twenty-eight, embarked on an academic career during the apogee of the industrial relations system within the welfare state with a paper on the Danish industrial relations system – one of his early and significant publications, he recalls – discussing therein an arrangement which he identified as an alternative to the adversarial, highly polarized system of Canadian collective bargaining with its unique features of capital-labour cohabitation. Again, in historical perspective, it is clearer to see how and why labour relations would become so pivotal for his career as a legal scholar, given his presence at the onset of this revolution. The nagging question, though, even in the heyday of these bone-shaking events, was: “Is it an unfulfilled revolution – large on promise and small on delivery?” In part inspired by his early field research in Denmark,14 in the 1960s and 1970s Arthurs was a powerful advocate of its nascent democratic traits and practices. But history has not been kind to industrial pluralism. The complexity and legalization of the grievance procedure, the forbidding of strikes during contracts, and the highly constrained and bureaucratized rules around striking resulted in squeezing the spontaneity and vitality out of industrial pluralism. The big unions protected their turf and self-interest and ended up moving away from industrial activism of the kind that had once given labour its greatest victories. Looking back, scholars are divided on why the system of workplace representation was so quickly tamed. Was it a design fault that bureaucratized and legalized industrial democracy? Was it the Cold

Introduction 9

War of bitter inter-union feuds and rivalries between the orthodox left and its social-democratic counterparts? Was it that the labour leadership felt more affinity towards a model of elite accommodation with business and government leaders than its restless rank and file? Harry Arthurs, as one of Canada’s leading labour arbitrators, was writing dozens of challenging decisions and had the ear and confidence of the system’s insiders. He was first among equals within a small number of influential labour arbitrators, variously assuming the role of consensus-builder, compromiser, or go-between – but in each case being deeply implicated in the world of industrial pluralism as an innovative legal thinker. Returning to the theme of “precursors and filiations”: the “law of subordination and resistance” and the “real constitution” – two of Arthurs’s most important insights – would come much later. In these early days of Canadian industrial democracy, the secret elixir that made the wheels of collective bargaining spin came, ironically, from another quarter. Mass industrial collective bargaining rested on its ability to increase the standard of living for Canadian working-class families. Many experts understood the institutional linkage that was part and parcel of post-war collective bargaining, particularly for the industrial unions, the bedrock of the system, and later also for public-sector workers. Michael Piore and Charles Sabel, in their highly influential book, The Second Industrial Divide,15 powerfully demonstrated how collective bargaining had made it possible for workers in key sectors of the economy to share in the productivity dividend from rapid economic growth. This took the form of an in­­ dustrial relations model of wage bargaining based upon the accepted practice of regularized wage increases added into employees’ base rate. So, in the language of economists, wages were “sticky downward,” and this meant that, in practical terms, pay packets grew in real terms for the workers in these key protected sectors, who, decade after decade, were shielded by collective bargaining. Workers inside the system acquired a middle-class lifestyle, bought homes, sent their children to university, took vacations, and, most importantly, acquired the tastes and lifestyles of an American-type mass-consumer culture. It is difficult to measure precisely the degree of critical distancing in Arthurs’s views of industrial pluralism. Certainly, the universe was not unfolding according to plan. The imposition of wage and price controls in Canada in the 1970s by the Trudeau government, and elsewhere in the world, revealed that the state was no longer a neutral

10 S. Archer, D. Drache, and P. Zumbansen

umpire but an active partisan in the industrial conflict waged between capital and labour. Labour law had reached its outer limits with its contested promise of balance and fairness. What is more important is that, for Arthurs as for many of his contemporaries, by the end of the 1970s, economic globalization had changed the conversation and altered the research agenda in dramatic ways. Fast-forwarding some twenty years after the waning of industrial democracy, we must not forget that Arthurs was also present at a second “moment of creation” of a hyper-neo-liberal global order, when these rights of industrial democracy were attacked, eroded, and lost in the mid-1980s with the election of Margaret Thatcher and Ronald Reagan, the architects of a very different kind of industrial relations system. This “tilt” towards engaging, critiquing, and exploring these duelling new world orders of global capitalism was, for Arthurs, prologue to much bigger things to come. 4 unbridgeable divides?

There is no room to doubt that the law is a compelling, daunting, complex – perhaps confusing – field. As the outcome of the historical evolution of jurisprudence, never as a static body of norms and “last words,” and, crucially, as a site of political engagement, the law is, perhaps above all else, about people and events. It engages with the behaviour and with the underlying, driving motivations and aspirations, but also the frustrations and resignations, of diversely motivated actors, their conflicts, and their (temporary) resolution. Law, then, manifests itself in private arrangements, sometimes publicly condoned as contracts, as well as in various instantiations of constitutionalism, in the form of rights or other equally ephemeral outcomes and victories. This much is familiar to lawyers and legal academics: it certainly lies underneath and behind all formally pronounced, recognized, and trusted “law.”16 But, as Arthurs never ceases to emphasize, all this must be seen as taking place within a wider political economy, whose vocabulary and logics are often less familiar to lawyers or even legal academics. To begin such an exercise of looking at the “context,” of critically unpacking the stakes, the obvious (noisy) as well as the hidden (silenced) interests of a conflict termed “legal,” we need to take a step back from those categories that we have become accustomed to accepting as factual, natural, inevitable. The “market” is surely one

Introduction 11

such term, which has become nothing short of a foundation upon which law is made and within which law is imbricated.17 But why then do critical lawyers today tirelessly (and bravely, even) keep returning to insights from some one hundred years ago into the constituted and artificial and, as such, highly political nature of the market?18 Harry Arthurs long ago saw how labour law had to be understood, studied, and engaged with as a site of critical investigation and contestation. Deeply sceptical of the mainstream’s benign characterization of labour law’s role of addressing market “excess” and its overall rather tame, polite, and controllable character – in other words, of seeing in labour law a space where “the social meets the market”19 – Arthurs moved labour law (and its attendant pastimes, including “corporate social responsibility,” etc.) from the periphery back into the centre. Labour law, as he most recently reiterated in his acclaimed 2015 Transnational Law Summer Institute lecture in London,20 should be understood as a prime site of engagement with law’s tenuous relationship with social, political, and economic dynamics of inclusion and exclusion, of subordination and resistance. By consequence, labour law remains the crucial space and the primary site of engagement in Arthurs’s work. From the perspectives of administrative and labour law as well as that of political economy, the dynamics and limits of the market are explored, unpacked, and rendered as social constructs. How then does Arthurs’s profound expertise in and commitment to labour law relate to his equally significant investigations into administrative law? A commitment to seeing and appropriating public and private regulatory frameworks in parallel, and an ability to do so, soon emerges as one of the defining traits – and strengths – of Arthurs’s scholarly and professional work. It is this perception that allows him to recognize the connections between the two fields, which – from a mainstream perspective – would likely be seen as occupying two separate, distinct universes (public vs. private law). In contrast, for Arthurs, both administrative law and labour law (as well as, to be sure, legal pluralism) are mere expressions of developments in legal regulation. Each of these, then, is a field of study and political critique that requires tireless and meticulously detailed work, attention to argument and to context, and awareness of existing power differentials and of both established and emerging political voices. These can only be made visible through specialized, disciplinary discourses that incorporate doctrine, adjudication practice, and

12 S. Archer, D. Drache, and P. Zumbansen

policy-making into a socio-legal analysis of the law “on the ground.” In the end, these only ever make sense against the background of a careful analysis of the political-economic conditions – domestic, transnational, global – under which they occur. Extend these pre­ occupations to legal education, the legal profession, and the prospects of critical, interdisciplinary pedagogy, and the cornerstones of Arthurs’s work emerge. Yet, it is also important to say what his work is not. Arthurs does not offer a sustained theory of collective action or emancipation for unions, governments, the broader public, or activists and their vanguard. We think of Edward P. Thompson, the esteemed British historian who thought in these fundamental categories and elevated labour studies to new heights.21 Or of Bill Wedderburn, whose pioneering, larger-than-life contributions to British labour law theory and practice laid the foundation for social democratic British industrial relations practices in his best-selling 1965 book The Worker and the Law.22 Arthurs is indebted to both these authors, and, in many ways, he stood on their shoulders as he began articulating a vision for industrial citizenship, or when he found himself working through the historical origins of administrative justice in the nineteenth century in order to reframe legal centralism.23 Widening the circle, it becomes possible to identify other critical connections as well. We can see that his work shares much with the iconic, forward-looking writings of André Gorz, the gifted French sociologist and public intellectual who wrote passionately and brilliantly about the future of work and employment. Gorz’s pioneering stance in putting forward a dystopian and certainly controversial analysis of the decline of the industrial proletariat in the 1980s finds many echoes in Arthurs’s views of “labour law after labour” and of a working class that has become fragmented, subordinated, and considerably stripped of its revolutionary appetite.24 Arthurs’s own analysis continues to hold on, as – braving the seemingly unstoppable arrival of bad news – it urges us to reflect more comprehensively on how to mitigate, if not to overcome, the growing chasm of inequality, divisions between capital and labour, and the political left and right. It is perhaps a Canadian trait to straddle deep, seemingly unbridgeable divides, or put conversely, to attempt to stand on an ever-­narrowing centre of the political spectrum. This trait provides a certain perspective on an increasingly globalized and globalizing world, in which the  small, open economies of countries such as Canada sit on the

Introduction 13

periphery of advanced capitalist economies and become subject to the violent swings of the global business cycle, which they are (or have become) powerless to control or influence, let alone protect themselves from. It is a daunting position. Certainly, the defiant fatalism that is present in Arthurs’s writing takes this perspective, and, in this, shares something of quixotic political philosopher George Grant’s powerful, intellectually gripping Lament for a Nation. This book identified the unstoppable continental forces reshaping Canada in the 1960s with its own t i n a, “there is no alternative ideological mindset.”25 Thirty years later, Arthurs mapped the constitutionalization of regional economic integration in “t ina x 2.”26 But the parallel between the two thinkers – Grant and Arthurs – is partial at best, because Arthurs’s project is not nation-building per se, but developing and maintaining a powerful analytical view on the legal dimensions of global capitalism. In both mapping and shaping the daunting enterprise of the law, Arthurs has done something quite special: he has moved dexterously between the nuts and bolts of labour law, the fine print of labour standards, and a powerful, sceptical discourse on the “rights revolution” and the rise of neo-liberalism in an era of globalization. Arthurs’s seminal work as a labour arbitrator and labour scholar led him through legal pluralism to a fully fledged critical theory of globalization, a rich and diverse intellectual trajectory of countless challenges and interventions for the better part of the next four decades. Another connection comes to mind. Harold Innis, Canada’s p ­ remier political economist, once warned against the pitfalls of contemporary-­ mindedness. Arthurs has largely avoided this trap because he did not set out to change the world, but rather to use powerful ideas to better understand it, and, if possible, push it in new directions. Two strategic elements to his thinking are, not surprisingly: first, the vast agendasetting power of the elites and the state; and second, the enormous, unconstrained influence of private global actors to control the discourse of politics and ideas. And beyond, there is inevitably the critical role of non-scripted popular actors pushing back, resisting and challenging dominant authority and its institutional structures. This is hardly a triumphalist discourse. Throughout, Arthurs has revealed the complex ways legal normative thinking is an extension of the grubby world of politics, and, as well, has warned us against the economic determinism of the new economy that upended the once-sturdy pillars

14 S. Archer, D. Drache, and P. Zumbansen

of collective bargaining and labour rights. He writes from a long, distinguished intellectual tradition of Canadian socio-legal thought on politics, social conditions, and the growth of institutions. On one side, it is bookended by F.R. Scott and others, who were pioneering the defence of human rights in the 1940s and 1950s, and, on the other, by labour historians such as Charles Pentland, Irving Abella, and others who focused on the evolution and maturation of Canadian labour and industrial relations. But how did this all happen? 5 ac a d e m i c i n f l u e n c e

Of the many possible futures discernible from Arthurs’s formative influences are two that would have longevity in his work: administrative law and labour law. Following these threads through his scholarship, we find a dissection of regulatory institutions and apparatuses which is positioned between the public and private law of political and economic governance.27 We follow them further and arrive at the forefront of globalization and an analysis of the limits of the state.28 In the middle of this arc falls an extraordinary book that forms a touchstone in the corpus: Without the Law, and its critical analysis of the relationship between legal centrism and legal pluralism. This book suggests to us that a better understanding of what law is and how it operates in society requires more than reading statutes and cases (sometimes called “black letter law”); it requires nothing short of a serious engagement with the social sciences – economics, sociology, psychology, anthropology, and, of course, history. Without the Law, still after thirty years, is a landmark study of law’s operations in a shifting socio-economic and political context, which is both shaped by and shaping the contestation / formation of legal rights and attending claims for political and social power. There are a number of remarkable, delightful threads leading from Without the Law to expressions in later work. Thirty years later, in “Making Bricks without Straw,” Arthurs challenges us to reconceptualize labour law after the demise of industrial blue-­collar labour as the “law of economic subordination and resistance.”29 This is neither accident nor coincidence; it comes as a pivot point in a project of engaged and critical labour regulation: a critique that is  politically bold, theoretically solid, pragmatically cogent, and normatively ambitious. Such a project was formed upon the basis of a longstanding engagement; and, indeed, we find the formula

Introduction 15

of  “Making Bricks” when he reviews – in 1985 – the regulatory ­ad-hocery used to combat the gravest conditions amongst English ­miners.30 “Making Bricks” (in 2013) restates his critique of the precarious state of the “protection” extended to society’s most vulnerable parties – without recourse, without access to justice, and without the expectation that such measures might become formalized or even protected by “rights.” Such a project then builds on a longstanding engagement with the messy “here and there” of legal pluralism,31 and now requires a deep understanding of the regulatory conditions that shape the creation of law (hard vs. soft,32 substantive vs. reflexive,33 public vs. private34), in new, spatialized governance constellations that escape their categorization as either national or international.35 Now place “Making Bricks” (2013) next to “Labour Law without the State” (1996) and you see the preparatory work for an assessment of labour law after labour, and how it must be reconceptualized. There is a direct line from the careful analysis of nineteenth-­century legal pluralism in England36 to the law of subjugation and resistance. With the final chapter of E.P. Thompson’s Whigs and Hunters lurking in the back of our minds,37 in Without the Law, “Labour Law without the State,” and “Making Bricks,” we find a depiction of the concept of the “rule of law” as an “unqualified human good.” The correlation between existing, customary and emerging, allegedly formalist orders cannot be properly grasped through observation and study alone. For Arthurs, it is the consequences of these rationalities in productive conflict that determine the quality of a rule of law: Yet, we can no longer ignore its [law’s] economic function, its political content, or its social effects. Nor can we fail to address the ongoing processes by which different manifestations of law come into existence, shape and are given shape by events, and interact with each other. And finally, we must accept that law is much more diverse in its content, causes and effects than our original paradigm proposed. This new way of looking at law we may therefore call “legal pluralism.”38 Without the Law provides the historical evidence and careful analysis of the legal pluralism at work in the heart of the administrative system even while it was being portrayed as a cornerstone of a state-centralist manifestation of predictable legal ordering. And yet,

16 S. Archer, D. Drache, and P. Zumbansen

what we see in this analysis directly mirrors the findings among present-­day sociologists and political scientists regarding problemand issue-driven, “responsive” regulation, altogether questionable with regard to its democratic legitimacy and procedural fairness: It is clear that much of the effective work of social and econo­ mic regulation was undertaken by the administration without recourse to either formal or informal adjudication. In many fields – factory safety, pure food, poor relief, railway safety, and enclosure, for example – the administration laid down standards of conduct by subordinate or quasi-legislation, and secured adherence by persuasion, education, compromise, and other informal processes.39 The intriguing mixture of caution and boldness, then, which we find to characterize Harry Arthurs’s writing about the legal pluralism of administrative rules and labour law codes against the background of a socio-legal analysis of norm creation, must be understood as the necessary precondition for what ultimately is a political-normative critique of shifting governance regimes. Our reading of his work in this vein suggests, thus, that it is here that we find the heart of the legal pluralist project. Arthurs’s commitment to a sociological and anthropological, geographical and cultural analysis of the patterns of interaction, behaviour, and development, with an eye to dominating trends and undercurrents, trajectories and dead-ends, triumphs and defeats is not just an expression of his take on legal pluralism – it is a call to arms to think of law as pluralist. The lesson to be learned from a historical study of the law – through the legal pluralist lens – is a simple one, in this respect at least. There is never just one order, one law, one legal culture. Instead, there is a permutation of struggles for recognition (from Hegel to the presentday Frankfurt School40), for resistance and voice.41 At the core of such a conception also lies the insight into the indeterminacy of law, into its ever-changing content and form. “[W]e no longer pretend,” he writes in Without the Law,42 that our legal system comprises a coherent body of principles harmoniously blending the legislation of five centuries and the common law of ten. We accept that our legal system is not fashioned anew in each age, and that the influences playing upon

Introduction 17

all parts of the system are not necessarily consistent at any given moment … Most important, we have altered our understanding of the way in which legal decisions are made. We now know that we are able to choose from among legal rules that offer different guides to conduct and different outcomes to disputes; we accept that we must make such choices openly and for reasons we can justify.43 Arthurs began thinking along these lines at least as early as 1979 in an important essay on administrative law. His further engagement in that field was prompted in no small measure by the Supreme Court’s overturning of his arbitration award in the Port Arthur case regarding dismissal and overtime.44 And it is in that essay that we find his trenchant analysis of Albert Dicey’s defence of the courts. Arthurs observed that history and modern practice coalesce around the proposition that what is “ordinary” is a situation in which law emanates from many sources, including judges, who do not sit in, are not part of, the hierarchy of, the superior courts …; and customs and private arrangements which similarly sink below Dicey’s plimsoll line.45 Later, in the same article, Arthurs points out the following: Mention of “pluralism” reminds us that there is nothing less at issue in our analysis of administrative law than an inquiry into the nature of the legal system itself.46 Returning to our earlier observation regarding Harry Arthurs’s particular qualities of seeing beyond the obvious, we here find another manifestation: where an analysis steeped in administrative law looks for instantiations of the exercise of power, political-­normative critique will seek to uncover the newly forming structures and spaces in which such power is constantly being reasserted and institutionalized. The legal pluralist will complement this perspective through a detailed account of norms operating in different forms and on different levels, and through recognizing and advancing various, conflicting interests, which find expression in this legal pluralist articulation. The globalization theorist, then, places the administrative and legal pluralist analysis in the context of worldwide changes in the way that states, despite

18 S. Archer, D. Drache, and P. Zumbansen

their (varied) intentions, play an increasingly marginalized role in effectively governing border-crossing processes.47 Testimony to the power of these related insights for law and legal scholarship is that today we have entire fields of study described as law-and-economics, law-and-society, law-and-anthropology, and many other subdisciplines.48 Arthurs functioned as nothing short of a founder, facilitator, and driver of these interdisciplinary fields and approaches in Canadian scholarship. 6 d e c l i n e a n d fa l l : t h e s h r i n k i n g of the public domain

For an interdisciplinarian, by the late 1970s, the era of industrial ­citizenship was certainly over. As one of the consequences, many of the social questions that had previously been addressed by, and fought over within, the institutional and procedural arrangements of the welfare state had to be reformulated as different types of social ­conflicts.49 With the problematic tension between courts and adminis­trative decision-­makers remaining unresolved, it would have to be recast, perhaps to the chagrin of courts that were asked to rule on highly politicized disputes that had previously been the domain of the administrative and welfare state. As the era of g­ lobalization progressed and intensified, global trade expanded, technological improvements enabled production to transnationalize, the North American economy became ever more deindustrialized, and the social and economic importance of the labour relations system entered into a long, painfully drawn-out phase of decline and fall. In his writing from about the mid-1980s onward, Arthurs engages with the newly refurbished Hayekian-inspired paradigm of marketbased governance and of the state as the last-resort intervener, emerging as allegedly unchallengeable and unchallenged manifestations of a worldwide nesting ideology of neo-liberal market governance: Today, the market is once again the primary institution shaping history from East to West, and it is assumed that market freedom can be reconciled with individual choice and political pluralism. This tension between market liberalism and a revolutionized society is always problematic for countries and regions and, in the end, unmanageable for the future of post-industrial society. The deeper reality of market-driven change is that the continuing

Introduction 19

drive for maximizing accumulation, whether for the few or in the name of national development, leads step by step to a crippling of social dependency for the many.50 For Arthurs, liberal society in Anglo-American economies no longer had an effective way to redress the fundamental inequality in the transfer of power and wealth that results when private property is made sovereign. Arthurs was one of the first to understand this corrosive phenomenon, and the consequences for labour law emerging from the muchdiscussed “retreat of the state,” quite correctly as something long-term and structural. It amounted to a huge change in the corporate landscape, or what he termed the “hollowing out of corporate Canada.” From about 1985 to the year 2000, much production of Canadian industry (as in most advanced capitalist countries) moved offshore, and foreign ownership of industry in Canada increased dramatically, a movement that still continues. The implications of this shift are profound, and not just for workers or labour unions. Corporate headquarters moved offshore, requiring fewer Canadian executives, shifting key decision-making to other jurisdictions, and reducing the scope and reach of Canadian elite power. Similar knock-on effects visited corporate service providers, including law, accounting, and consulting firms, which had to consolidate and compete over a declining market. The question that required answering was: why would Canadian elites permit such a thing to happen? Arthurs’s frank answer was the “globalization of the mind,” describing the disturbing ways in which local elites, in the context of glo­ balization, reconfigure their aspirations and priorities, even if it be to their own detriment. Albert Hirschman once proposed a perversity thesis, holding that “purposive action to improve some features of the political, social, or economic order only serves to exacerbate the condition one wishes to remedy.”51 Arthurs provided an astute if not pessimistic analysis of this very thesis, a thematic he returned to often in many of his major articles.52 What he prompted his readers to engage with was a meticulous examination of the transformation of Canada’s declining grip on industrial relations, economic policy-making, corporate decision-making, and labour market regulation.53 To be sure, the decline of labour has to be seen as only one symptom of a larger phenomenon of the erosion of “the public domain,” once the centrepiece of democracy in advanced liberal economies.

20 S. Archer, D. Drache, and P. Zumbansen

The public domain, the res publicae of governance in the modern era, has taken a multitude of forms – public places, spaces, land, public squares and parks, and most importantly, public goods such as social programmes, collective bargaining, and income security. It used to be taken as axiomatic that no state could refuse its citizenry entitlements to public goods, which were once deemed necessary for the legitimation of the state. Instead, Arthurs could now observe that the decline of the state is viewed today with equanimity by postmodernists who can conceive of democratic “governance” advan­ cing even as the state becomes less legitimate and effective, and with enthusiasm by neo-liberals who eagerly contemplate the arthritic retirement of the night watchman state.54 What are the wider effects of unceasing polarization of income and wealth? What happens when formerly public goods are not provided by the market, civil society, or the state? What happens when “the right to be included to enjoy the fruits of civic participation” is no longer guaranteed or protected by public authority and industrial democracy? A return to the old industrial relations system, or variations thereof, does not seem feasible in the least: [T]he cost of resuscitating the public domain, the unpredictable behavior of empowered communities and the interventionist tendencies of democratically elected governments is likely to collide with the desire of powerful economic actors for low taxes, open markets and acquiescent labor.55 Instead, Arthurs argued, the unshuttering of the public domain is dependent on the activities of people themselves. It seems quaint to call them “citizens” or “workers” anymore, in a world whose axis spins crazily amid the continuous flows of commodities and hundreds of millions, if not billions, of daily market transactions of every description. But “in politics, social action, workplace organization and community participation,” Arthurs has continued to believe that one of the conditions for redirecting the relations of power and the processes of governance will have to be related to the mobilizing activities of non-scripted and scripted social movement actors in this Internet age.56 Here, Arthurs is in the company of theorists as distinct as Colin Crouch and Anthony Atkinson.57

Introduction 21

Did Arthurs astutely predict the tilt in the new power configuration when he argued that the public domain could be rebuilt whole only by tightly focused democratic claims from the bottom up?58 On this fundamental issue, Arthurs was and continues to be a hard-boiled sceptic – and for a particular reason. There are too many material mountainsized obstacles standing between a reinvigorated public domain and hyper-competitive globalized markets, which in recent times have been giving rise to even more problematic suppression of individual and collective autonomy, assemblages of public-private security, surveillance, and “othering” regimes.59 In this context, hope for a renewed and robust logic or theory of collective action is becoming ever more elusive. Three decades and more of privatization and deregulation have badly compromised the “sacred trust” of governments to defend even the institution of democracy. So where is the potent force of constitutionalism – the so-called putative shield of the weak and the vulnerable – to be located? What forms, in this dark universe roiled by the relentless neo-liberal tide, can processes of democratic representation and political intervention take today? 7 c o n s t i t u t i o n a l i z at i o n and the

“real

constitution”

In his analysis of the incipient failure to entrench labour rights in the Charter of Rights and Freedoms, Arthurs explores alternative grounds of constitutional empowerment for “the working class or poor people,” only to find that “any legal gains the Charter has brought to workers or poor people has accrued to them as women, people of colour, disabled people, gays, aboriginal peoples and so on.”60 The Charter is celebrated in this orientation as an explicit recognition of precisely those groups that progressives had long identified as marginalized, excluded, and “superfluous” – and therefore in most urgent need of protection.61 We might even be frustrated that entrenching labour rights was excluded – or so we thought – in the constitutionalizing moment. We were wrong: in the recent trilogy, the Supreme Court of Canada felt that it was finally time to constitutionalize the right to strike, answering questions that had been asked since elements of collective bargaining were found to be constitutionally protected about ten years earlier.62 Dismissing the Supreme Court’s jurisprudence is not done lightly, doubly so if the news is good for labour. And yet, in effect, this is Arthurs’s position on the relevance of constitutionalized labour

22 S. Archer, D. Drache, and P. Zumbansen

relations protection. He was glad it happened, he opined, but noted with characteristic irony the quiet sound of “one shoulder shrugging.”63 It is sometimes tempting to treat this position as anti-court, depreciative of legal effects, or symptomatic of an excess of cynicism. To do so is to overlook an irreducible reality: workers’ improved constitutional rights have been accompanied by a firm limitation, if not erosion, of most measurements of workers’ well-being, whether they concern wages and working conditions or relate to different forms of collective action, including strikes. In that sense, you either see it, or you don’t. Either we make the connections between the political economy of work and the legal expressions that follow it, or we fail to do so. Either we grasp the centrality of the transformations in production and services outpacing the ability of loosely attenuated regulatory frameworks to cope, or we miss the point entirely. Either we identify the causality between fighting the elevation of the “costs of labour” and the advance of labour market “flexibility,” or we are lost in the clutter of micro-data. Either we are focussed on the effective and explicit governance of labour and employment relations and the actual participation of the “disenfranchised” in public life, or we are lost in the minutiae of public policy.64 Arthurs has insistently emphasized the need to look to the “real constitution” of society and public policy not as a way out of political stalemate but as a deeper truth about state, market, and citizen relations. The parallels between these kinds of arrangements and the situation on the global level after the end of embedded liberalism65 are self-evident. The strains placed on states to develop (globally) effective rules to protect the interests of the most vulnerable populations now appear in a different light.66 Rather than being able to blame regulatory failure on an abstraction called globalization or the postsovereign state, we can see choices made and alternatives abandoned, or left unexplored. New sites of resistance, engagement, and policymaking are being contested by popular mobilization in the service industries in which the old demarcations between national and international politics have become significantly porous, reducing public policy to an ever more widely proliferating body of transnational private regulation – even in the most sensitive areas of gender rights and protection for marginal exploited workers.67 What is present throughout Arthurs’s writing is the emphasis on exactly this correlation between the local, provincial, national, and

Introduction 23

global administration of rules, and on the resulting formations of national structures of inclusion and exclusion (particularly in the EU), on protection for political refugees, on the one hand, and the movement between black letter official and unofficial “law,” on the other, to ignore human rights conventions. Arthurs’s tight coupling of his detailed institutional analysis of legal ordering with a normative critique of labour standards, guided by the question of whose interests are at stake, is at the centre of his legal thinking about the daunting enterprise of the law. What he does so effectively is provoke us to inform ourselves about the limitations and possibilities of legal regulation. His bare-knuckle answers provide insights into law’s operation today, and are both sobering and inspiring. Arthurs’s interest in and concern regarding the transnational, private creation of labour norms, including codes of conduct, standards, and guidelines,68 is by no means confined to the transnational regulatory space, a recurring and constant theme of his œuvre. For him, the transnationalization of (labour) law is inseparably tied into the fundamental changes that the new economy and the transformation of the welfare state have brought domestically, and which the dynamics of globalized economic interaction exacerbate and further complicate. “Until now,” he wrote in 1997, “we imagined that good theory, strong advocacy, and determined political action could bring about changes in national law and policy and, ultimately, therefore, in norms, institutions and behaviours in the labour market. Globalization has radically undercut this assumption, by effectively de-coupling politics and economics. Politics remain national; economics has become global, or  at least we convinced ourselves that it has.”69 So where in this “brave new world” are we to look for the collective rights of labour as a social actor? Arthurs’s answer is what we would expect it to be: nuanced, disarmingly complex, brooding, and pluralistic.

8

s u b j u g at i o n , y e s

–

b u t a l s o r e s i s ta n c e

The fall in the living wage for many reasons has pushed precarity, poverty, and insecurity to the top of many research and policy agendas. Arthurs would ask us to address the question: “if, indeed, ‘labour’ and ‘employment’ [and] even ‘worker’ are terms which have been largely stripped of their significance, how are they to regain symbolic and practical heft?”70

24 S. Archer, D. Drache, and P. Zumbansen

Labour law scholars and labour lawyers have been tempted to respond by focusing on lingering questions from the old regime – if only we had constitutionalized rights to collective bargaining, labour would re-establish itself as a social and economic power. This kind of approach overestimates the role of law and underestimates the forces working against it. Indeed, there is something symmetrical in the prescriptions of proponents of austerity programmes when they don’t work: if only we could deregulate dog licensing, then surely prosperity would follow, wouldn’t it? The re-emergence of labour as a countervailing force in a reinvigorated democratic capitalism remains only a theoretical, if not a discursive, possibility. In the Arthurs canon it is left unexplained how labour at the low point of the collective bargaining cycle can relearn the fundamentals of its craft with a different kind of workplace model of representation to find its way back to the bargaining table – or indeed, for a table of any kind to be an imposing presence. But to conclude this is too convenient. We must instead push further out, beyond the confines of a conventional response, for other possibilities. Arthurs frames the predicament this way: We look to law for so much: for emancipation, empowerment, regulation, loss distribution, social control, dispute resolution, and symbolic reassurance; to promote or protect ideals, interests, institutions, classes of litigants, individual people, animals and trees; and to operate at every level from the family to the community to the nation state and to the regional and the universal … But paradoxically we have also learned to expect very little from law.71 It is not just the precarious state of labour or its expressions in labour law. We might also wonder about the possibility of a “rule of law” at all. A daunting task, no doubt, but one we must accept in any attempt to get a grip on what Neil Walker has called law’s “fading coordinates” in a transnational context,72 and what – as we in the Global North are only too slowly beginning to appreciate – has been fought over in other parts of the world in so many more, self-­ sacrificing, tireless, and institutionally transformative ways.73 Perhaps this task is what Arthurs, with admirable sensibility and a keen eye, has best captured by invoking the recovery and use of “landscape and memory” in his metaphorical methodology to restore meaning-­making to law’s legal culture.

Introduction 25

Still, it is an open question whether his trenchant analysis of these contending approaches and the attendant costs for individuals and families would have moved to another level, like an Ernesto Laclau in radical democratic political theory or a Colin Crouch in his rich institutional analysis of post-democratic practices. Edward P. Thompson, the great British historian to whom we have already referred earlier in this introduction, concludes his iconic Whigs and Hunters with an apparently unequivocal expression of his belief that “the rule of law itself, the imposing of effective inhibition upon power and the defence of the citizen from powers all intrusive claims, seems to me to be an unqualified human good.” Thompson believed that to give up the struggle against “bad laws” was to “disarm ourselves before power.” Where Thompson confidently thought that the candle was worth every moral fibre of his being (and he was ready to “crawl out onto his own precarious ledge”), Arthurs parts company with the historian. In “Who Will Redraw the Bounda­ ries of Labour Law?” he isolates and recalls the “original sin of labor law,” a concept deeply embedded in much of its own thinking. Here, he is very far indeed from Thompson’s invitation “to crawl out on the precarious ledge.” But quite rightly, he asks other key questions – “who ought to be entitled to how much protection, from which risks, at what cost to whom and with what potential benefits?” In Arthurs’s view of the world we need to be clear. The shifting boundary of legal and regulatory regimes driven by the rule of law offers no certainty of workers’ protection in the new order. It is worth hearing from Arthurs on this fundamental point: I maintain, there can be no “answers” – only contestations, no definitive redrawing of “boundaries” – only ongoing negotiations and tentative compromises. In that sense, perhaps we have launched ourselves on a project which we will not be able to bring to a successful conclusion. Not willing to stop there, Arthurs offers the possibility that it can evolve through practice and custom precisely in that direction.74 So where does this leave his iconic statement on the “law of subordination and resistance,” on the one hand, and his epistemic analysis of collapsing “boundaries of protection,” on the other? Perhaps the fragmentation of normative orders implied by pluralism – both domestic and transnational – is also its most hopeful

26 S. Archer, D. Drache, and P. Zumbansen

lesson: there is never just one answer in order, law, legal culture, and where there is more than one, there is something surely to hope for. 9 o l d h at s a n d e l e p h a n t s

One of the memorable moments in Antoine de Saint-Exupéry’s Le Petit Prince is the passage in which the prince and pilot both look at a snake, and see two different things: an old hat (the pilot) and an elephant (the prince). The elephant and the hat are either “hidden,” or they require a shift in the point of view, and there is a delight in seeing things in these new ways – and yet this delight, this lesson in perspective, occurs within an elegiac, even melancholic book. Throughout this essay, we have insisted on highlighting Arthurs’s “way of seeing” legal problems. After nearly forty years of the decline and fall of industrial pluralism, it is common to hear in legal and academic conversation that, despite memories of halcyon days, “we cannot go back,” while, at the same time, workplace collectivities (among others) must adapt and change to “become relevant again.” It seems as if something of both are called for. We live in an age of vast inequalities in wealth, of increasingly precarious work for the many, of social dislocation, and of often unresponsive governments. How might public needs and the daunting task of industrial relations best be served when markets are the servants of public need rather than its masters? Can we – and, if so, how can we – articulate a vision of a politicized capitalism, of fair and decent work and the laws of such a just society? Labour law scholars of Arthurs’s generation were fortunate to witness, firsthand, a revolution of the industrial relations system and its Thermidor fall from grace. Attentive to the challenges and details of that system, including its failures, they nonetheless were afforded a view from the apex of the great arc of twentieth-century democratic capitalism. From that height, they could, and did, see a bigger picture of the daunting enterprise of the law with its flawed potentiality. Without keeping both in mind, there is perhaps no adequate assessment of what the world of work actually looks like.75 This helps to explain why so many of the lessons of legal realism, law-in-context, or law-and-society have long seemed entirely obvious to many (though not all) students of industrial and labour relations. To them, the diagnosis of unfairness and inequality, in all its manifestations, and the role of law in those circumstances, must seem so

Introduction 27

self-evident: that every aspect of an employment contract, a negotiation regime, a claimed property right, or an invoked right to strike is intertwined with unstable, contested regulatory employment regimes, rules, and principles, and subject to the “microphysics of power.”76 Today, a new generation of labour law scholars has to grapple with the degree to which labour markets are connected through global value chains to product markets, the boom and bust of the “new economy,” the challenges of massive consumer indebtedness, and the proliferation of precarious and volatile working arrangements everywhere.77 What this tells us unequivocally is that now is not the time to rest or to back off. We would like to conclude this short introduction without attempting any speculation or conclusion to these challenges. Instead, we invite you to engage in the conversations in this book with a critical spirit and an open mind. Here is a group of scholars from North America, Europe, and beyond, who have, over the course of their own careers, contributed to and helped shape the project which is at the heart of this book and of Harry Arthurs’s lifetime work in all of its many diverse, enriching, and infinitely challenging dimensions. N ot es   1 It is important to think conceptually about the law in its multiple personalities as an institution, a political and legal culture, and police and courts in tandem, with the daunting power of the judiciary “riding shotgun” over its different parts. Legal ordering encompasses the behaviour and consequential actions of actors and events; it includes political economy in the large sense, and the arrangement and use of coercive power, constitutionalism, and state practices. These are familiar concepts to most legal scholars and political economists. Arthurs has deployed them, with a particular focus on the political economy of public and private governance, and the political economy of markets, in describing what we have called “the daunting enterprise of the law.” From the dual perspectives of a public intellectual and a critical scholar of labour and administrative law, the dynamics of a market sphere constitute a rapidly changing and formidable set of research coordinates.   2 Harry W. Arthurs, “Woe unto You, Judges: Or How Reading Frankfurter and Greene, ‘The Labor Injunction,’ Ruined Me as a Labour Lawyer and Made Me as an Academic,” Journal of Law & Society 29 (2002): 657–8.  3 Ibid.

28 S. Archer, D. Drache, and P. Zumbansen

  4 Ibid., 659. The echo of Holmes’s concluding lines in 1897 are not coincidental. Holmes concluded his famous speech thus: “And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food beside success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.” Oliver W. Holmes Jr, “The Path of the Law,” Harvard Law Review 10 (1897): 457, at 478.   5 Philip Girard, Bora Laskin: Bringing Law to Life (Toronto: University of Toronto Press, 2005).  6 Ibid.   7 Harry W. Arthurs, “Developing Industrial Citizenship: A Challenge for Canada’s Second Century,” Canadian Bar Review 45 (1967): 786.  8 Ibid.   9 Michael Piore and Charles Sabel, The Second Industrial Divide: Possibilities for Prosperity (New York: Basic Books, 1984). 10 “Rights were conceded grudgingly. In the United States, the establishment of the industrial union movement was facilitated by the coincident adoption of an orderly industrial relations law by a progressive government. In Canada, almost the reverse was true. The industrial unions won the right to organize and bargain in the absence of any enabling framework amidst a virtually lawless industrial relations environment. In the end, it was Canada’s industrial unions themselves who brought the new system into being.” Don Taylor and Bradley Dowe, The Rise of Industrial Unionism in Canada – A History of the c i o (Montreal, qc : Queen’s University, Industrial Relations Centre, 1988), http://irc.queensu.ca/sites/default/files/ articles/R%26CI-taylor-dow-the-rise-of-industrial-unionism-in-canada-ahistory-of-the-cio.pdf, 14, last accessed 24 July 2016. For key elements in the Canadian evolution of industrial relations, see Irving Abella, On Strike: Six Key Labour Struggles in Canada 1919–1949 (Toronto: James Lorimer, 1974). 11 Daniel Drache, “Canada’s Resource Curse: Too Much of a Good Thing,” NorteAmerica 4 (2009): 15–53, http://www.miningwatch.ca/files/drache_ canadas_resource_curse_dec_18.pdf, last accessed 24 July 2016. 12 But there were always two faces to this “revolution”: Quebec and British Columbia, both turbulent regions of trade union militancy, seemed closer to the European model and style of collective bargaining,

Introduction 29

whereas Ontario, the industrial heartland, appeared closer to the American variant. 13 Arthurs, “Developing Industrial Citizenship,” 793. 14 In conversation with Daniel Drache, 22 August 2015. 15 Piore and Sabel, The Second Industrial Divide. 16 Peer Zumbansen, “What Lies Before, Behind and Beneath a Case? Five Minutes of Transnational Lawyering and the Consequences for Legal Education,” in Stateless Law: Evolving Boundaries of a Discipline, ed. Shauna Van Praagh and Helge Dedek (Farnham, v t: Ashgate Publishing, 2015), 215–29. 17 Upendra Baxi, “Market Fundamentalism: Business Ethics at the Altar of Human Rights,” Human Rights Law Review 5 (2005): 1–26. 18 See, for example, Kerry Rittich, “The Future of Law and Development: Second Generation Reforms and Incorporation of the Social,” Michigan Journal of International Law 26 (2004): 199–243, citing – inter alia – Morris Cohen, “Property as Sovereignty,” Cornell Law Quarterly 13 (1927): 8n45. 19 See, critically, Judy Fudge, “The Way Forward for Social Europe: How Do We Get There from Here?” Modern Law Review 77 (2014): 808–22. 20 Harry W. Arthurs, “Labour Law and Transnational Law: The Fate of Legal Fields and the Trajectory of Legal Scholarship,” Inaugural Annual Lecture in Transnational Labour Law, presented on 30 June 2015 at the Trans­ national Law Summer Institute, The Dickson Poon School of Law, King’s College London, and reprinted in The London Lectures in Transnational Law & Global Governance, ed. Prabha Kotiswaran and Peer Zumbansen (Cambridge: Cambridge University Press, forthcoming [2016]). 21 Edward P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975). 22 Kenneth William (Bill) Wedderburn (Lord Wedderburn of Charlton), The Worker and the Law (Harmondsworth, u k : Pelican Books, 1965). 23 Harry W. Arthurs, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto Press, 1985). 24 André Gorz, Farewell to the Working Class: An Essay on Post-Industrial Socialism (London: Pluto Press, 1982). See Harry W. Arthurs, “Labour Law after Labour,” clpe Research Paper 15 / 2011, subsequently published in The Idea of Labour Law, ed. Guy Davidov and Brian Langille (Oxford, u k : Oxford University Press, 2011), 13–29. 25 George Grant, Lament for a Nation: The Defeat of Canadian Nationalism (Toronto: McClelland and Stewart, 1965). Grant was wrong because the

30 S. Archer, D. Drache, and P. Zumbansen

defeat of Canadian nationalism found a modern champion in Trudeau, Canada’s middle class, and the Liberal Party. His strategic idea as prime minister was to transcend the narrow British-inspired Anglo-Canadian nationalism and fast-forward the old British connection into a pan-­ Canadian force for multiculturalism even while battling the nationalistcentred independence movement in Quebec. 26 Harry W. Arthurs, “ti n a x 2: Constitutionalizing Neo-conservatism and Regional Economic Integration,” in Room to Manoeuvre? Globalization and Policy Convergence, ed. Thomas J. Courchene (Montreal, QC , and Kingston, on : McGill-Queen’s University Press, 1999), 17–74. Like C.B. Macpherson, Canada’s pre-eminent political theorist of democracy, or Charles Taylor, world-renowned for his pioneering contribution to multiculturalism, Arthurs’s legal pragmatism and deep scepticism has a long pedigree and is strongly anchored in the Canadian socio-legal culture. See F.R. Scott’s Essays on the Constitution: Aspects of Canadian Law and Politics (Toronto: University of Toronto Press, 1977). 27 Harry W. Arthurs, “Administrative Law – Jurisdiction of Provincial Supreme Court to Review Acts of Federal Administrative Agency – The Perambulating Plaintiff in Search of a Federal Forum,” Canadian Bar Review 40 (1962): 505; Arthurs, “Regulation-Making: The Creative Opportunities of the Inevitable,” Alberta Law Review 8 (1970): 315; Arthurs, “Rethinking Administrative Law: A Slightly Dicey Business,” Osgoode Hall Law Journal 17 (1979): 1; Arthurs, “Jonah and the Whale: The Appearance, Disappearance and Reappearance of Administrative Law,” University of Toronto Law Journal 30 (1980): 225. 28 Harry W. Arthurs, “The Administrative State Goes to Market – And Cries Wee, Wee, Wee All the Way Home,” University of Toronto Law Journal 55 (2005): 797. 29 Harry W. Arthurs, “Making Bricks without Straw: The Creation of a Trans­national Labour Regime,” in Critical Legal Perspectives on Global Governance: Liber Amicorum David M. Trubek, ed. Gráinne de Búrca, Claire Kilpatrick, and Joanne Scott (Oxford, u k , and Portland, or : Hart Publishing, 2013), 129–42. 30 Arthurs, Without the Law, 188: “We have seen … Herbert Mackworth, driven by his ‘sacred duty’ to his miserable miners, making the bricks of a new regulatory regime without the straw of sanctions. But what have they to do with us? The answer to this question depends in part upon whom we mean by ‘us.’” 31 Sally Falk Moore, “Law and Social Change: The Semi-Autonomous Field as an Appropriate Subject of Study,” Law & Society Review 7 (1973): 719; Arthurs, Without the Law, 189: “Centralist or pluralist assumptions,

Introduction 31

often not made explicit, lie beneath many contemporary legal policy proposals and intellectual controversies.” 32 Kenneth W. Abbott and Duncan Snidal, “Strengthening International Regulation through Transnational New Governance: Overcoming the Orchestration Deficit,” Vanderbilt Journal of Transnational Law 42 (2009): 501. 33 Ralf Rogowski, Reflexive Labour Law in the World Society (Cheltenham, uk: Edward Elgar Publishing, 2013); Gunther Teubner, “Substantive and Reflexive Elements in Modern Law,” Law & Society Review 17 (1983): 239. 34 Walter Mattli and Ngaire Woods, “In Whose Benefit? Explaining Regula­ tory Change in Global Politics,” in The Politics of Global Regulation, ed. Walter Mattli and Ngaire Woods (Princeton, n j : Princeton University Press, 2009), 1. 35 Saskia Sassen, “The Places and Spaces of the Global: An Expanded Analytical Terrain,” in Globalization Theory: Approaches and Controversies, ed. David Held and Andrew McGrew (London: Polity Press, 2007), 79–105. 36 Arthurs, Without the Law. 37 Thompson, Whigs and Hunters. 38 Arthurs, Without the Law, 3. 39 Ibid., 149. 40 Axel Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts (Cambridge: Polity Press, 1996); Nancy Fraser and Axel Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (New York: Verso Books, 2003). 41 Boaventura de Sousa Santos, “The World Social Forum and the Global Left,” Politics & Society 36 (2008): 247. 42 Arthurs, Without the Law, 206. 43 Ibid., 207. 44 Port Arthur Shipbuilding Co. v. Arthurs et al., [1969] S.C.R. 85, http://scccsc.lexum.com / scc-csc / scc-csc / en / item / 4123 / index.do, last accessed 24 July 2016. 45 Arthurs, “Rethinking Administrative Law,” 1, at 14. 46 Ibid., 42. 47 Arthurs, “Labour Law and Transnational Law.” 48 See, already, Harry W. Arthurs and Robert Kreklewich, “Law, Legal Institutions, and the Legal Profession in the New Economy,” Osgoode Hall Law Journal 34 (2000): 1; and Harry W. Arthurs and Annie Bunting, “Socio-Legal Scholarship in Canada: A Review of the Field,” Journal of Law and Society 41 (2014): 487.

32 S. Archer, D. Drache, and P. Zumbansen

49 Harry W. Arthurs and Claire Mummé, “From Governance to Political Economy: Workers as Citizens, Stakeholders and Productive Social Actors,” Osgoode Hall Law Journal 45 (2007): 439. 50 Daniel Drache and Meric S. Gertler, “Preface,” in The New Era of Global Competition: State Policy and Market Power, ed. Daniel Drache and Meric S. Gertler (Montreal, qc , and Kingston, ON: McGill-Queen’s University Press, 1991), xi, xv. 51 Albert O. Hirschman, The Rhetoric of Reaction: Perversity, Futility, Jeopardy (Cambridge, m a: Belknap Press of Harvard University Press, 1991), 7. 52 Ibid., 221: “[G]lobalization cannot exist apart from the state; indeed, it might be said to depend crucially upon a series of governmental responses to globalizing corporate initiatives.” Given the article’s framing in work on legal pluralism and anthropology, and then-current work on the global south, we might also find an unintentional reference to Ngu˜gi˜ wa Thiong’o’s work on decolonizing the mind on the same issues. See Ngu˜gi˜ wa Thiong’o, Decolonising the Mind: The Politics of Language in African Literature (London: James Currey, 1986). 53 As already in Without the Law, Arthurs’s engagement with socio-legal studies and legal anthropology, which he displays in “Globalization of the Mind” as in other writings throughout his career, paves the way and argues for a legal-pluralist analysis of labour and employment law, which has so far been unmatched. Through his conversation and engagement with major path-breaking scholars in legal anthropology and the sociology of law such as Sally Falk Moore, Boaventura de Sousa Santos, Rod Macdonald, and Gunther Teubner, Arthurs brings labour into the legal-pluralist fold in a way that then allows him to trace the subtle lines of continuity between the domestic and trans­ national manifestations of labour and employment law pluralism. See, in this respect, among Arthurs’s landmark contributions: “Reinventing Labor Law for the Global Economy: The Benjamin Aaron Lecture,” Berkeley Journal of Employment and Labor Law 22 (2001): 271; “The Role of Global Law Firms in Constructing or Obstructing a Transitional Regime of Labour Law,” in Rules and Networks: The Legal Culture of Global Business Transactions, ed. Richard P. Appelbaum, William F. Felstiner, and Volkmar Gessner (Oxford, uk : Hart Publishing, 2001), 273; and “The Pachyderm and the Predator: Two Fables about the Social Regulation of the Global Firm,” in The Regulation of Work and Employment in Global Firms, ed. Gregor Murray and Gilles Trudeau (Oxford, u k : Routledge, 2014).

Introduction 33

54 Harry W. Arthurs, “The Re-Constitution of the Public Domain,” in The Market or The Public Domain: Global Governance and the Asymmetry of Power, ed. Daniel Drache (London: Routledge, 2001), 85, at 89. 55 Ibid., 106. 56 Ibid., 107. 57 Colin Crouch, Making Capitalism Fit for Society (Cambridge, uk , and Malden, m a : Polity Press, 2013); Anthony Atkinson, Inequality: What Can Be Done? (Cambridge, m a: Harvard University Press, 2015). 58 See Gerry Rodgers, “Labour Market Flexibility and Decent Work,” United Nations Department of Economic and Social Affairs, desa Working Paper No. 47 / 2007, http://www.un.org/esa/desa/papers/ 2007/wp47_2007.pdf, last accessed 24 July 2016. 59 Shoshana Zuboff, “Big Other: Surveillance Capitalism and the Prospects of an Information Civilization,” Journal of Information Technology 30 (2015): 75–89; The Invisible Committee, To Our Friends (Los Angeles, c a : Semiotext(e), 2015). 60 Ibid., 47. 61 Susan Marks, “Law and the Production of Superfluity,” Transnational Legal Theory 2 (2011): 1. 62 “B.C. Health Services case” – Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, [2007] S.C.C. 27. 63 Harry W. Arthurs, “Constitutionalizing the Right of Workers to Organize, Bargain and Strike: The Sight of One Shoulder Shrugging,” Canadian Labour & Employment Law Journal 15 (2010): 273–86. 64 Harry W. Arthurs, “Labour and the ‘Real’ Constitution,” Cahiers du droit 48 (2007): 43–64. 65 John Gerard Ruggie, “International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order,” International Organization 36 (1982): 379. 66 Arthurs asks us to consider the future of the “architecture of the Canadian state and of its federal system” in order to appreciate the crucial determining facts that tie the regulation of labour to a matter of “property and civil rights” at provincial level. Scrutinizing the “impoverished and anachronistic view of employment relations as involving ‘merely private’ arrangements and resting only on contractual (‘civil’) rights,” he then highlights the unsurprising but no less frustrating fact that the provincialization of labour rights results in the foreclosure of “national industrial, labour market and training strategies.” (The same problem bedevils the regulation of global capital,

34 S. Archer, D. Drache, and P. Zumbansen

with perennially ignored calls for tougher national securities regulation by wise persons.) 67 Colin Scott, Fabrizio Cafaggi, and Linda Senden, eds., “The Challenge of Transnational Private Regulation: Conceptual and Constitutional Debates,” Journal of Law and Society 38 (2011), Symposium Issue: 1–188; Peer Zumbansen, “Happy Spells? Constructing and Decons­ tructing a Private Law Perspective on Subsidiarity,” Law & Contem­ porary Problems 79 (2016): 101–22, http://ssrn.com/abstract=2628254. 68 Harry W. Arthurs, “Private Ordering and Workers’ Rights in the Global Economy: Corporate Codes of Conduct as a Regime of Labour Market Regulation,” in Labour Law in an Era of Globalization: Transformative Practices and Possibilities, ed. Joanne Conaghan, Richard Michael Fischl, and Karl Klare (Oxford, uk : Oxford University Press, 2002), 471. 69 Harry W. Arthurs, “‘Landscape and Memory’: Labour Law, Legal Pluralism and Globalization,” in Advancing Theory in Labour Law in a Global Context, ed. T. Wilthagen (Amsterdam: North Holland Press, 1997), 21–34, at 22. 70 Harry W. Arthurs, “What Immortal Hand or Eye? – Who Will Redraw the Boundaries of Labour Law?” in Boundaries and Frontiers of Labour Law: Goals and Means in the Regulation of Work, ed. Guy Davidov and Brian Langille (Oxford, u k : Hart Publishing, 2006), 373, at 388. 71 Arthurs, “‘Landscape and Memory,’” 25. 72 Neil Walker, “Out of Place and Out of Time: Law’s Fading Coordinates,” Edinburgh Law Review 14 (2010): 13. 73 See, for example, César Rodriguez-Garavito, ed., Law and Society in Latin America (Basingstoke, u k: Routledge, 2015); see also Upendra Baxi, “Justice Deferred: Transnational Lawyering and the Bhopal Gas Tragedy 30 Years On,” keynote presented at the Transnational Law Summer Institute, King’s College London, June 2015, forthcoming in The London Lectures, ed. Kotiswaran and Zumbansen. 74 Arthurs, Without the Law, 149. 75 Among others, see Guy Standing, The Precariat: The New Dangerous Class (London: Bloomsbury Academic, 2011), which, in great detail, captures the dynamics between on-the-ground change to employment and the macro-forces affecting it. 76 Daniel Drache and Robert Boyer, eds., States against Markets: The Limits of Globalization (London: Routledge, 1996), esp. parts IV and V. 77 Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism (New York: Verso Books, 2014).

pa r t i

The Pluralization, Decentralization, and Transnationalization of Labour Law

1 The Singular Pluralism of Harry Arthurs Brian Langille Toronto

1 “ i ’ d r at h e r h av e b e e n a m i n e r t h a n   a   j u d g e .” 1

Fred Rodell famously said: “There are two things wrong with almost all legal writing. One is its style. The other is its content.”2 Of course, in writing those very sentences, Rodell immediately cast some doubt upon his own thesis. Harry Arthurs’s work presents the “long proof” that legal writing, in both form and substance, can be breathtaking to encounter. Near the heart of Harry’s substantive intellectual explorations over almost sixty years lies his deep commitment to, and understanding of, the idea and ideals of legal pluralism, and a parallel distrust of, and distaste for, legal centralism and all its trappings. These commitments are combined with a rare talent and taste for razor-sharp and original expression, sometimes diplomatic and sometimes not, but always elegant and studded with striking phrases and sentences that jump off the page and take one’s breath away. That Harry has a very dry wit and is often hilariously funny doesn’t hurt. And, in recent years, while Harry’s writing has remained fresh and aggressive, his work now has a quality of intellectual light that only a master who has lived a long and productive life of deep ­acade­mic  attachment to ideas and their lucid expression can achieve. Reading Harry is one of this life’s rarest pleasures. A beautiful demonstration of both his writer’s skill and the substance of his views of the pluralist and centralist “paradigms” of law can be found in his 1985 book entitled “Without the Law”:

38 Brian Langille

Administrative Justice and Legal Pluralism in Nineteenth Century England.3 But his thinking about these two approaches to law continued and continues to animate his life’s work. In his most recent paper,4 which I saw him present in France last summer, he sustains his confrontation with, and interrogation of, the powerful (and perhaps dominant, in legal circles) way of thinking about law, which he sees as constituting the legal centralist’s view of the world: law is formal; it is neutral; it is indifferent to empirical evidence, context, the real world’s distribution of power, or the “needs of society”; it is top-down; it is made by the state, monopolized by lawyers, and ruled over by judges, who are the gatekeepers of the secret knowledge vital to law’s project; it is addicted to dangerous and misleading ideas such as “the rule of law”; it is integrated and hierarchical; and, finally, it is at the centre of events. It is also averse to theory and immune to the insights of other disciplines. Not to mention terribly conservative. Harry’s opinion is that this is a rather pathetic view, certainly of my field of labour law, held by “dour devotees of legal logic”5 who, either through intellectual inbreeding and replicated incompetence (via a dreary form of legal education6) or as part of a systematic and in­ten­tional fraud upon working people, advocate, advance, and install values, ideologies, and interests which are antithetical to theirs. A self-described “progressive”7 lawyer, “sceptic,”8 and “pessimist by nature,”9 he, again in his own words, admits to having engaged in some “youthful attempts”10 to actually take courts and common law seriously on their own terms,11 and even to having constructed “the odd conceptual ­scaffold”12 for practising lawyers. But this was not to be Harry’s main line of business. As Harry recalls, when he started out, he was already a “vulgar or unsophisticated legal realist,” to use another self-description.13 Legal things happened not because the law instructed that they should, but because judges “saw things in light of professional values and perspectives … personal ideologies and political agendas.”14 Familiar stuff. But Harry moved on to a “more truly radical critique.”15 He became a pluralist. This was a view that, at the very least, rejected the central role of courts, and the confusion of the rule of law with the rule of courts, which are central planks in the centralist programme. This move to pluralism was no accident. Harry’s general intellectual commitments were hammered out at the specific workbench of labour law – the field in which I came to know Harry and the legal

The Singular Pluralism of Harry Arthurs 39

field that he has dominated in Canada, and continues to dominate, as no other legal subject has been dominated by a single individual. His reputation is now global, as well as glittering.16 The connections between labour law and legal pluralism are deep and obvious. As noted, legal pluralism holds that law is not centralized, nor statecentric, nor top-down, nor dominated by judges and lawyers, nor universal and neutral, nor apart from the world. Rather, law is local, indigenous, home-made, from the bottom up, differentiated, contextualized, often unwritten, and always interwoven with the forms of life constructed by the relations between, say, buyers and sellers in discrete commercial markets, or between workers and bosses in individual workplaces, or in local communities defined in other ways and with other concerns. Harry’s favourite way of putting all of this is, borrowing from E.P. Thompson, that law is “imbricated”17 in daily life. In the early days of his career, Harry used to walk over to the garment district centred on Spadina Avenue in downtown Toronto to settle workplace disputes on the shop floor. (Now, those garment industry jobs are in Bangladesh and the factories have been converted to condominiums for people employed in finance – Harry’s career stands majestically astride these economic changes, which he carefully reported upon and worried about.18) Crucially, in Canada, the whole project of labour law during the first part of Harry’s career was premised on the idea of getting the general, formal (common) law out of the way, along with the common law judges who administered it, precisely because of its and their inability and unwillingness to understand either the real world or the “needs of society.” Labour law appeared a pluralist’s heaven. An Alsatia.19 The project of the legislation that then dominated labour law in Canada was one of radical surgery in which all of the vital organs of pre-existing “law” were removed and replaced, along with the common law judges who ran the show. Harry’s teacher, Bora Laskin, who is the founding father of labour law as a legal subject in Canada, was able to say that, as a result, any effort to appeal to the old and general common law notions (of contract law and so on) was an attempt to enter “a world which had ceased to exist.”20 Harry himself put it this way: “The umbilical cord has been severed.”21 Halcyon days … halcyon days. But things then went sideways, as they are wont to do. The centralists fought back. And Harry was there to join in the battle. In the early going of his “misspent youth,” he had critiqued anti-labour

40 Brian Langille

judicial creativity in the regulation of strikes and picketing.22 Later, he turned his intellectual firepower in the direction of the rearguard action known as “judicial review.”23 Still later, he had to take up the struggle against, or at least lament, the legalization of the labour arbitration process.24 And, recently, the “constitutionalization” of labour law has been his target.25 But all of this was small beer, mere detail. 2 “ n ot h i n g j u s t h a p p e n s ”: 2 6 a singular pluralism

Harry came to see not only that the centralists fought back, but that larger forces were abroad in the world. Legal pluralism invited wider thinking. It could free us from the blinkers of the standard centralist account, and let us see a broader horizon of law. But there was a risk – that the move to legal pluralism could be seen as “merely” a move from an arid and internal legal conceptualism to a dry, if external, sociological observation and empiricism. Harry is a singular pluralist in several ways. He was not content with the “banality” and “embarrassment”27 of legal discourse and reasoning. But the move to pluralism, as important as it is – especially for an understanding of labour law’s past, if not its future – is unsatisfying.28 Pluralism may reveal that there is more to legal life than the standard account allows – that many things are happening. But Harry was still, in spite of his many contributions to legal pluralism as an approach to law, not satisfied. He now had a broader view, but he needed to dig deeper. This is because, truly, “nothing just happens.” Even in the law. Harry’s real conversation was (and is) not simply with other lawyers and their centralist programme. Nor with those describing plural parallel legal worlds. It was with those who were exploring why they “happened.” And not in terms of a “vulgar and unsophisticated legal realism,” but in the light of a world of knowledge and ways of thinking “beyond the law.”29 Harry conversed with social scientists,30 political economists, historians, and social theorists who were living beyond the law and who were unencumbered by the law’s limited self-understanding, be it singular or plural. His interest lies with those who have interesting ideas about why “things happen,” both in the world as we find it, and in the law as part of that world. Harry seeks to “get beyond” both a singular conceptual clarity, and multiple empirical accuracies. He seeks to understand why things happen. On this view, the action is not in the law, not even the Constitution, but, rather, in the “real constitution.”31 Not the law, even on a pluralist

The Singular Pluralism of Harry Arthurs 41

vision, but rather the “deep structures of political economy.”32 Labour law must “chart the plate tectonics of dynamic labour markets”;33 the disappearance of “labour” as a social construct or political class;34 the disappearance of the state.35 To do so, we need to understand trade, foreign investment, taxation, immigration, corporate structures, and social welfare laws – “our system of political economy,” which both bears upon and determines labour market reality. If we don’t do so, we risk “teaching our students about twigs, branches and trees when they have to understand forests and ecosystems.”36 Harry started off labelling, in common with others,37 this new understanding or “map” of labour law “the law of labour market regulation.”38 But he has recently drawn back his analytic lens, re­scaled his map, and he now sees labour law as part of a larger picture – as part of the law of “economic subordination and resistance”39 – because the “abuses attributable to disparities of economic power are not unique to labor markets.”40 The essential project is “protection from arbitrary use of economic power.”41 This is a view that demands large causal understandings, and draws upon large normative commitments. It is a view both about why things happen and about what should happen. 3 “ st i l l c r a z y a f t e r a l l t h e s e y e a r s ” 42

To recap: Harry’s intellectual journey in search of a new understanding of labour law began with him leaving the dingy little town of traditional legal thinking – with its local tyrannies, banalities, insularity, lack of interest in the wider world, and distrust and belittling of those who come “from away” and of those locals who desire to travel there. A basic instinct, a “progressive” instinct, and a dose of “unsophisticated” legal realism told him to set off. Legal pluralism gave him a place, many places, to go. But Harry’s pluralism really is a singular one. He is a pluralist who seeks more: why and how things turn out as they do. And how they should. In seeking more, he has created a body of work that is wide and deep. It is wide because Harry’s life and work have spanned the eras and the legal history that he discusses. Not many of us can claim to have seen and lived both the glory and the long decline of labour law. He speaks with real authority. He stands astride. It is deep because, while Harry has read voraciously and written voluminously about events and causes in the real world, or worlds, of labour law, one of his signal accomplishments has been both to point

42 Brian Langille

out and to chart the importance of the “mind” in all of this. How we think about things matters. Harry famously coined the phrase and explicated the idea of “globalization of the mind.”43 On this view, globalization is a way of thinking about things, a way of framing events, a way of making sense of the world. Its “bedrock assumption”44 is that governments make things worse. Back in the glory days, the idea was that “government was meant to get involved in order to make things better; government now is meant to step aside for fear of making things worse.”45 But, on the new account, the “best” kind of law is constitutional law, which permanently disables the state’s capacity for intervention.46 It used to be different. “The past is a foreign country, they do things differently there.”47 Harry used to live there. But this is the country that we now inhabit. We may have moved from the dingy little town of law in the 1950s to the bright lights of globalization and its discontents in the world as we now find it in 2015, but a large part of what makes up that distance is in the mind. Harry’s lesson is that ideas are powerful. The “tectonic plates of the global economy” are brought to life and moved around, in large part, by mental means. There is, however, a catch. These basic and framing ways of thinking, these assumptions, are hard to see, let alone shake off, precisely because they are our way of seeing. As Keynes reminded us: “The difficulty lies, not in the new ideas, but in escaping from the old ones, which ramify, for those brought up as most of us have been, into every corner of our minds.”48 Wittgenstein’s famous answer to the question “what is your aim in philosophy?” was: “To show the fly the way out of the fly bottle.”49 This is the best way of understanding Harry Arthurs’s struggle with law. He has seen most lawyers, law professors, and legal education as stuck in a glass jar that restricts their thinking and yet is invisible to them. We bump against the limits of our world as we hit the invisible barriers created by our own minds. He has struggled mightily to lift the jar both by argument and by the illustration of his own example, to show that liberation is possible, that our own mental incarceration does not have to be a life sentence. My reading of Harry is that, in undertaking this noble task, in leading the charge to liberate law from its banalities, embarrassments, and tyrannies,50 its talk of “artificial reason,”51 and the “fetishizing” of “fairness, rationality, predictability and clarity as law’s contribution to social ordering,”52 Harry has carried with him a version of

The Singular Pluralism of Harry Arthurs 43

law which is also hard to shake off. He has long had his eye trained upon a certain view of law with which legal pluralism, or any sensible adult for that matter, must take issue. But is there not the possibility of just a mote of contradiction here? Might it not turn out that, when we abandon the tropes and the mystifications which he describes and which dominated legal education in his formative period (and beyond) – really abandon them, and think – that we may see that Harry did not make a mistake, at the age of four, in deciding to become a lawyer?53 Put another way – “globalization of the mind” now plays the same sort of role that what we might call the “legalization of the mind” did when Harry started his journey. But our task in both eras, which Harry stands astride, remains the same. It consists in what Northrop Frye advised in On Education54 – maintaining an unrelentingly keen eye out, and deep distaste, for anything “doctrinaire.” By this, he has in mind what Harry does – the received wisdom, the accepted and unexamined “truth,” the university as producer of complacent and compliant citizens, anti-intellectualism, the cultivation of a politically convenient mindlessness, what everyone knows, what is fashionable, cliché, prejudice, correctness, and propaganda. All this got in the way of, and was designed to replace, independent critical thought. Harry has maintained such a keen eye for decades. He has also held true to Frye’s ideal of society’s true teacher, as well as the scholar, because Harry, to use Frye’s words, “has persisted in the immortal task granted only to teachers, the task of corrupting its youth.”55 He challenges us all to take charge of our own thought. But to be truly rebellious, to do what Harry really wants us to do, to escape the arid world of law and legal education that he once lived, described, bemoaned, and sought to change, to lift Wittgenstein’s jar and be liberated from these constricting patterns of thought, to escape the confines of the old ideas which “ramify into every corner of our minds,” to be liberated from “legalization of the mind,” does not release us from the academic duty to disdain the doctrinaire. Rather, we are condemned, as takers of the academic oath, to look at the world as we can now more clearly see it, and, in the immortal words of Howard Cosell, “tell it like it is.” And, if you do so, you may see, and say, something truly radical. It may turn out that it might just be, after all the “vanities” of the “legalization of the mind” have been stripped away, that there is something left to the ideas of law, legality, and the rule of law.

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This means that law is not simply an empty vessel to be filled up with a conventional set of short-sighted, mean-spirited, cold-hearted, and narrow-minded rules forged as a weapon against labour. But, also and on the other hand, neither is the idea of law merely a tool to be appropriated in the revolution against globalization of the world and “of the mind.” Rather, it might just be what it is. When we remove obstacles to our thinking, we may see more clearly. But removing obstacles does not tell us what we will see. Perhaps this is indeed where Harry has ended up.56 In his most recent paper, Harry seems to have made a sort of peace with himself about the decision, all those years ago as a four-year-old, to become a lawyer. While still insisting that constitutional law is a non-starter as a vehicle for social change and social justice, while still making the case that it is the “real constitution” – i.e., “the normative assumptions inscribed in the deep structures of the economy”57 – which matter and need to be changed, while still sounding a progressive call for a “politics of fear” (not constitutional law) as the way to achieve this result, Harry makes room for law. Just law itself. A modest self, but a legal self. This “modest” view of law is tripartite: the law can help prevent quotidian abuse of ordinary folk by public authorities; it can create and protect, through its “core principles of the rule of law,” such as “freedom of association, belief, and expression,” the space for progressive politics to operate; it can foster a “commitment to legality” and respect for the rights of others.58 I know that Harry has long been deeply moved by E.P. Thompson’s “postscript” to Whigs and Hunters59 in that it describes a moment, in the study, late at night, at the end of writing, when the author reflects on the deep meaning of what is written. It is a moment all superb academics, such as Harry, have lived. But while he long admired this famous Thompsonian moment, he did so while also seeming to distance himself from the words that Thompson wrote that night.60 But now, in his latest paper, he actually takes a risk, sets aside his scepticism and pessimism, abandons the doctrinaire, liberates himself from the “legalization of the mind,” and crawls out onto the “narrow ledge”61 with E.P. Thompson. He associates himself with Thompson’s famous remark that “the rule of law is an unqualified human good.”62 As with Thompson, it is, as we have seen, a somewhat modest good and it is important to realize its limitations: it cannot rewrite the real constitution on its own, but only support and help create the space for the real political struggle which can.

The Singular Pluralism of Harry Arthurs 45

But it is a human good nonetheless. Here, Harry himself comes, at the very least, very close to total liberation from a certain picture of law that he has long believed has held many captive. Has Harry finally become a pluralist who has found a place for the rule of law, shorn of its “vanities,” and being just what it is? I hope so – for that would be a true, radical, and singular pluralism. N ot es   1 With apologies to Peter Cook’s “Sitting on the Bench,” from The Complete Beyond The Fringe (1961 Original London Cast Recording), disc 2, track 10.   2 Fred Rodell, “Goodbye to Law Reviews,” Virginia Law Review 23 (1936): 38–45. On Harry’s, I think, fond view of Rodell, see “Woe unto You, Judges: Or How Reading Frankfurter and Greene, ‘The Labor Injunction’, Ruined Me as a Labour Lawyer and Made Me as an Academic,” Journal of Law and Society 29 (2002): 657n9, where, after acknowledging his borrowing of his title from Rodell, Harry describes him as a “fellow curmudgeon.”   3 Harry W. Arthurs, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto Press, 1985).   4 Harry W. Arthurs, “The ‘Majestic Equality’ of the Law: Why Constitutional Strategies Do Not Produce Equality,” Osgoode Hall Law School Legal Studies Research Papers, Paper #70., vol. 10, issue 16 (2014).   5 Harry W. Arthurs, “Constitutionalizing the Right of Workers to Organize, Bargain and Strike: The Sight of One Shoulder Shrugging,” in Is There a Constitutional Right to Strike in Canada? (ed. Brian Langille), Canadian Labour and Employment Law Journal 15, Special Issue (2009–10): 374.   6 A subject about which Harry has had much to say: see, for example, Law and Learning (Ottawa: Social Sciences and Humanities Research Council, 1983); “Madly Off in One Direction: McGill’s New Integrated, Polyjural, Transsystemic Law Programme,” McGill Law Journal 50 (2005): 507.   7 Arthurs, “Constitutionalizing,” 374.  8 Ibid.   9 Arthurs, “Law and Learning in an Era of Globalization,” German Law Review 10 (2009): 629. 10 Arthurs, “Woe unto You,” 665. 11 See, for one example, “Tort Liability for Strikes in Canada: Some Problems of Judicial Workmanship,” Canadian Bar Review 38 (1960): 346.

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12 Arthurs, “Constitutionalizing,” 374. This is a real example of overly large understatement. These bits of “odd scaffolding” remain in place today as enduring basics within the labour law system; see, for example, Arthurs, “The Dependent Contractor: A Study of the Legal Problems of Countervailing Power,” University of Toronto Law Journal 16 (1965): 89. 13 Arthurs, “Woe unto You,” 660. 14 Ibid., 659. 15 Ibid., 661. 16 Harry has been recognized not only as the Dean of Canadian academic labour law – for example, he was the first winner of the Bora Laskin Award – but also as a global leader in the field: he was the first (co-)winner of both the llrn ’s Award for Distinguished Career Contributions to Labour Law (along with Sir Bob Hepple) and the il o’s Decent Work Prize (along with Joseph Stiglitz). 17 A word that he has happily used, with attribution, down the decades. And, on this very point, see Harry’s remarks in “EP Thompson – In Memoriam,” Studies in Political Economy 43 (1994): 24, where Harry takes as his “text” the word “imbricated.” 18 There is too much writing to mention on this point, but see, for example, Arthurs’s “Labour Law without the State?” University of Toronto Law Journal 46 (1996): 1. See also his “Labour Law after Labour,” in The Idea of Labour Law, ed. Guy Davidov and Brian Langille (Oxford, uk : Oxford University Press, 2011), 1. 19 A word and an idea running through Without the Law. 20 In a famous and oft-quoted arbitration decision, Peterborough Lock Manufacturing Company, [1954] 4 L.A.C. 1499, at 1502. 21 In another very famous arbitration decision, Port Arthur Shipbuilding, [1966] 17 L.A.C. 109, at 112. 22 Arthurs, “Woe unto You.” 23 See, for example, “Protection Against Judicial Review,” Revue du Barreau 43 (1983): 277. Harry also had direct experience as its victim – see Port Arthur Shipbuilding v Arthurs et al. on judicial review in The Supreme Court of Canada, [1969] S.C.R. 85, perhaps the most perfect example of what Harry railed against. 24 See, “The New Economy and the New Legality: Industrial Citizenship and the Future of Labour Arbitration,” Canadian Labour and Employment Law Journal 7 (1999): 45. 25 Arthurs, “Constitutionalizing.” 26 Arthurs, Without the Law, 1; in fact, the first line of the book.

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27 Arthurs, “Madly Off in One Direction,” 716. 28 Arthurs, “Charting the Boundaries of Labour Law: Innis Christie and the Search for an Integrated Law of Labour Market Regulation,” Dalhousie Law Journal 34 (2011): 1, at 10. 29 Harry inscribed my copy of Without the Law with words inviting me to join him “beyond the law.” 30 Who often appear in Harry’s work as the alternative to lawyers. 31 Harry W. Arthurs, “Labour and the ‘Real’ Constitution,” Cahiers du droit 48 (2007): 43. 32 Arthurs, “Charting the Boundaries of Labour Law,” 13. 33 Ibid., 14. 34 Arthurs, “Labour Law after Labour.” 35 Arthurs, “Labour Law without the State?” 36 Arthurs, “Charting the Boundaries of Labour Law,” 16. 37 Simon Deakin and Richard Mitchell (as the representative of the “Australian school”), for example. 38 Arthurs, “Charting the Boundaries of Labour Law,” 13–17. 39 Arthurs, “Labor Law as the Law of Economic Subordination and Resistance: A Thought Experiment,” Comparative Labor Law and Policy Journal 34 (2013): 585. 40 Ibid., 592. Those in similar circumstances include tenants, consumers, farmers, small investors, franchisees, debtors, and so on. 41 Ibid., 593–4. 42 Paul Simon, song and LP title, 1975. 43 Harry W. Arthurs, “Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields,” Canadian Journal of Law and Society 12 (1997): 219. 44 Arthurs, “Law and Learning in an Era of Globalization,” 632. 45 Ibid. 46 Ibid. 47 L.P. Hartley, The Go Between (London: Hamish Hamilton, 1953), opening line. 48 In his “Preface” to The General Theory of Employment, Interest and Money (New York: Harcourt, Brace & World, 1964). 49 Ludwig Wittgenstein, Philosophical Investigations (Oxford, uk , and Malden, m a : Blackwell, 1968), para. 309. 50 Arthurs, “Madly Off in One Direction,” 716. 51 Ibid., 662. 52 Arthurs, “Law and Learning in an Era of Globalization,” 635. 53 Arthurs, “Woe unto You,” 657.

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54 Northrop Frye, On Education (Toronto: Fitzhenry and Whiteside, 1988). 55 Ibid., 20–1. 56 Note the guarded way of putting this. Harry is, as we have seen, a ­self-described sceptic, pessimist, and curmudgeon. On the other hand, he has, from time to time, made valiant attempts at optimism. See, for example, his “Law and Learning in an Era of Globalization,” and “Recon­ciling Differences Differently,” Comparative Labor Law & Policy Journal 28 (2007): 155. 57 Arthurs, “Labour and the ‘Real’ Constitution.” 58 Arthurs, “The ‘Majestic Equality’ of the Law,” 12–13. 59 Edward P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York: Pantheon, 1975). 60 Arthurs, Without the Law, 199; Arthurs, “Law and Learning in an Era of Globalization,” 635; and, most especially, Arthurs, “EP Thompson – In Memoriam,” where the moment is referred to, and the question asked is noted, and it is said that it was answered with rigour and moral force. Not that it was answered correctly. 61 Thompson, Whigs and Hunters, 266. 62 Arthurs, “The ‘Majestic Equality’ of the Law,” 13, quoting Thompson, Whigs and Hunters, 266.

2 A Yankee Gets Schooled in King Arthurs’s Court: Canadian Labour Law as a Cautionary Tale Cynthia Estlund New York University School of Law

Harry Arthurs has managed to be both mourner-in-chief for the impending demise of the aging “Wagner model” of labour relations that Canada and the United States share, and an aspiring architect of the future of work law in North America and beyond. From his lofty perch, he has chronicled the arc of organized labour’s rise and decline, on this continent and beyond. Never losing sight of the forest for the trees, and armed with a consummate erudition and eloquence, Harry has become a kind of labour law prophet for the advanced capitalist world, and especially for its Anglo-American regions. I write as one of his humble American followers. Harry’s importance to American labour lawyers and scholars stems partly from the location of his perch in Canada. We in the United States could learn a great deal – if we were capable of learning it – from Canada and the trajectory of its labour law regime. Of course, Harry would be the first to caution us about the complexity of crosscountry learning.1 But if any two national labour law systems are “mutually intelligible,”2 ours should be. Canada’s basic framework for union organizing and collective bargaining was famously modelled on ours.3 It is a striking illustration of the “extraterritorialization of American labor law.”4 Our National Labor Relations Act (n lr a ), or Wagner Act, of 1935 served as a model for Canadian reformers in the mid-twentieth century, and the basic features that

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distinguish the Wagner model from much of the developed world – enterprise-based bargaining, exclusive representation, and majority rule – are still at the core of both systems. Yet, Canada has largely escaped one central pathology of American labour law: its sheer obduracy. Canadian labour law thus suggests some paths not taken in the United States. Let us first count the ways in which US private-sector labour law is insulated from legal change, or “ossified,” as I have put it elsewhere.5 First, even before the current era of hyperpolarization, a longstanding labour-specific political logjam in Congress has blocked any significant revision of the nl r a since 1959. Second, the National Labor Relations Board (nl r b ), which administers and interprets the n l ra, is increasingly constrained by an aging text and the growing encrustation of binding precedent, some of it dreadfully constrictive in its conception of workers’ rights. Third, a broad federal pre-emption doctrine blocks nearly all state and local reform efforts in the arena of collective labour relations (except for state “right-to-work” laws, a newly active arena of “reform”). Fourth, the n l ra’s broad ban on  “company unions” – enacted in 1935 and never revised – has thwarted the development of alternative, employer-sponsored forms of employee representation. Fifth, the absence of a private right of action under the nl r a keeps private plaintiffs, their attorneys, and courts from playing the creative role that has transformed other aspects of “employment law.” Sixth, the courts’ resistance to constitutional review of labour law (except for the still-burgeoning “right to refrain,” the constitutional ally of the resurgent “right-to-work” movement) has fenced out potentially liberating developments, such as the First Amendment rights of non-labour protesters. Seventh, American courts are notoriously impervious to appeals to international law, including fundamental labour rights, of the sort that have forced the re-examination of national labour laws in both Europe and Canada. To top off the long list of infirmities, in recent years, the n lr b has been put out of business for long periods, deprived of a quorum by congressional gridlock over appointments.6 Like many American labour law scholars who have grown frustrated with the bleak prospects for constructive labour law reform, I have often gazed with envy to the north, for Canada has produced a steady stream of legal developments that we in the United States can only dream of. In short, Canadian labour law is far more dynamic than its elder cousin and namesake.

Canadian Labour Law as a Cautionary Tale 51

Most dramatically, of course, the Canadian Supreme Court has not shied away from Charter-based challenges to labour legislation (and the lack thereof). This reflects, in part, the more dialogical form that judicial review takes in Canada as compared to the United States.7 Moreover, Canadian courts and lawmakers do not seem to regard claims based upon international law as an affront to national sovereignty. Canada has thus ratified “core” i l o Conventions, including No. 87 on the freedom of association, that the United States has not (though both have failed to ratify Core Convention No. 98 on the right of collective bargaining).8 A more modest conception of Canada’s role within the international order has thus facilitated the incorporation of international law into national law; and the two together have allowed the Charter to serve as a conduit for arguments grounded in international labour law and “fundamental labour rights.”9 From materials such as these – basically unavailable to US labour lawyers and courts – the Canadian Supreme Court has sculpted a “freedom of association” for workers and their organizations that includes a right to engage in collective bargaining and even a right to strike.10 While Canadian labour lawyers and scholars debate whether these rights are as robust as they should be, their counterparts in the United States are wide-eyed and agog at the prospect of constitutional collective labour rights that can command legislative action on behalf of workers and unions.11 (Of course, Harry has famously questioned the importance of these groundbreaking legal developments; more on that later.) But even apart from these developments under the Canadian Charter, and even before the current era of extreme gridlock in the US Congress, Canada has offered a much more fertile field for experimentation and adaptation in the field of labour law. To begin with, legislative reform is easier in a parliamentary system that allows majorities to have their way than in a system full of “checks and balances” and minority veto powers such as we have in the United States. And the fact that most labour law is provincial law facilitates legislative change as well as variation, experimentation, and learning of the sort that a federal system is supposed to engender. Strikingly, nearly all of the empirical evidence cited in connection with the latest failed labour law reform proposal in the United States, the Employee Free Choice Act (e f c a ), was from Canadian provinces that had enacted provisions for “card-check” recognition (that is, recognition based on a majority of signed union authorization cards) and for mandatory first-contract arbitration.12

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Finally, one of the points on which Canada’s “Wagner model” differs from its US namesake is the scope of the ban on “company unions”; Ontario’s equivalent, for example, is narrower and allows some alternative structures of employee representation that are illegal in the United States.13 Once again, US scholars contending for the value of employee health and safety committees in the non-union workplace have had to look to Canada for empirical evidence;14 for, while such committees exist on the ground in the United States, most are probably illegal under the nl r a.15 Yes, that’s right: it is nearly impossible in a non-union workplace in the United States to set up a lawful, jointly run labour-management health and safety committee. In short, many improvements or alternatives to the basic Wagner model seem possible in Canada, but are out of reach in the United States under the original Wagner Act (especially as amended by the anti-union Taft-Hartley Act of 1947). So, I found it surprising, and strangely energizing, to discover some years ago – in part through my early acquaintance with Harry – that Canadian labour law scholars were themselves in turmoil over the crisis of labour law and collective bargaining. They seem to have observed that, while union density in Canada was almost three times as high as in the United States – the latest figures have it at 30 per cent in Canada, and 11 per cent in the United States16 – it was following a similar trend line in both countries. In particular, despite a veritable frenzy of reform (at least by comparison to the stasis south of the border), the basic Wagner model of collective bargaining is working for a small and declining share of the private sector labour force (16 per cent in Canada, and just over 6 per cent in the United States).17 It struck me that, although the situation for organized labour was more dire in the United States, Canadian labour scholars seemed more agitated. They seemed to be in an earlier and angrier stage of grief over the impending demise of collective bargaining. Elisabeth Kübler-Ross famously described the five stages of grief that individuals pass through when faced with the prospect of death: denial, anger, bargaining, depression, and acceptance.18 One might (a bit cynically and far too simplistically) summarize the evolution of American labour law scholarship over the last fifty years as a progression through these stages: “Denial,” in hindsight, appears to have characterized much mainstream labour law scholarship of the 1960s and 1970s, which parsed doctrine as employer resistance hardened and organized labour stagnated. “Anger” flashed in the labour law writings of critical legal studies scholars in the 1980s. Alongside this

Canadian Labour Law as a Cautionary Tale 53

blast of criticism, a kind of “bargaining” took hold in the 1990s, with the proliferation of labour law reform proposals, both in the literature and in Congress. But all of those proposals – including most recently the Employee Free Choice Act – failed. By the 2000s, when I first began to fraternize with Canadian labour law scholars, we in the United States had sunk into a kind of depressive funk over the future of unions and collective bargaining. Many of us had gravitated toward greener pastures either in the far more dynamic (and less coherent) field of “employment law,” or in new forms of collective labour activism outside the Wagner Act model of collective bargaining. (The latter is perhaps one corner of the US labour landscape to which Canadian labour lawyers and scholars might look for hope or inspiration, as some, including Arthurs, have begun to do.19) It might be pleasing to think of the latter move as a form of “acceptance” – or beyond, like a bereft spouse finding new love – but many of us are still grieving; we still long for an idealized version of our late beloved. Still, the kicking and screaming has, to some degree, subsided, giving way to depression. It was thus quite energizing to find that both anger and bargaining were in full swing in the much smaller circle of Canadian labour law and industrial relations scholars. There was plenty of anger over the “hollowing out of Corporate Canada,”20 and the corrosive influence of globalization, globalized US-based corporations, and neo-liberal market fundamentalist ideology on the comparatively benign Cana­ dian industrial relations climate. And there was bargaining in the form of the active promotion of provincial and national reforms that might reverse the decline of union density and collective bargaining, as well as Charter-based litigation. These efforts were bearing enough fruit to give labour law scholars new legal developments to analyze – something that has been largely missing from US private-sector labour law for decades. Through it all – or at least through the last dozen or so years that I have known him and his work – Harry Arthurs has stood a bit above the fray, or ahead of the curve, with his eyes fixed on the longer arc of political and economic history. And that has led him to some rather depressing conclusions, even in the midst of the occasional outbreaks of celebration that labour law scholars in Canada have enjoyed more often than their US counterparts in recent decades. In particular, Harry has kept his head about him with regard to the Canadian Supreme Court’s rulings under the Charter, surely the most exciting developments in North American labour law in many

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decades. In Harry’s telling, the Canadian experience serves as a “cautionary tale” for US observers who might be enraptured by the recent Charter decisions. For the pro-labour trajectory of these decisions has been mirrored by a downward trajectory of labour market outcomes: union density, union militancy, and labour’s share of g d p have all declined steadily.21 Several years ago, in contemplating the anticipated ruling for workers’ right to bargain collectively in the Fraser litigation, he said this: I consider myself to be a progressive scholar who recalls the by­­ gone era of collective bargaining with great nostalgia; I admire skilled lawyers and free-thinking judges and have built the odd conceptual scaffold for both in my time; and I retain an atavistic attachment to logic and historical accuracy. But because most of all I am a sceptic, I will shrug. Of course, I will shrug with one shoulder only … Clearly, [agricultural] workers should have the same rights to organize, bargain and strike as workers in auto plants and banks, however modest the value of those rights may turn out to be in practice. Consequently, if the Supreme Court decides in their favour, one shoulder will remain firmly in place; but the other will shrug.22 As it turned out, Harry was (uncharacteristically) optimistic in predicting a ruling for the agricultural workers in Fraser. But, given that prediction, why so dour? He proposed a “thought experiment”: Imagine that ten or twenty years have elapsed since … Fraser. Will we likely find a higher proportion of union members in the workforce? Greater union militancy and greater public support for collective bargaining? Improved wages and working conditions? Enhanced job security and a more effective voice for workers in corporate governance? Easier access to labour markets for those who have been excluded from work, and more generous provision for those who confront redundancy or retirement? The answer to all of these questions, I predict, is likely to be no.23 That is because “[s]ocial and economic relations … are largely determined not by the formal, juridical constitution but by what I have called the ‘real constitution’ – the steep gradient of wealth and power that determines so much in our society.”24

Canadian Labour Law as a Cautionary Tale 55

“The steep gradient of wealth and power …” The elegant and economical prose cannot soften the harsh and depressing conclusion: progressive constitutional decisions informed by progressive international labour law principles are unlikely to reverse or even slow the decline of organized labour and of workers’ share of our societies’ economic output. Such a conclusion might have led a lesser human being at this stage of a dazzling scholarly career to throw in the towel – to retire to the country and the well-earned pleasures of grandparenthood. Instead, Harry has been trying to find the way forward. Perhaps, the way forward lies in an embrace of legislation – of more robust, democratically enacted standards of decent work – a project to which Harry has made prodigious contributions in Canada.25 Indeed, some of us on both sides of the border have argued that “employment law” might even offer footholds for reviving collective representation for workers by way of “New Governance” or “decentred” theories of regulation.26 But Harry detects an assumption underlying these and allied theories “that, ultimately, powerful corporate actors can be induced to ‘do the right thing’ – whether to forestall state action, to win recognition and market share as socially responsible employers, to secure access to state subsidies and contracts, or simply to avoid adverse publicity and consumer boycotts.”27 It will surprise no friend of Harry’s to learn that he finds that assumption “overly optimistic.”28 And insofar as these “New Governance” or reflexive theories of regulation, especially their transnational variants, rely on “soft law,” Harry finds even less to like: [S]oft law … lacks the democratic legitimacy that comes with legislative enactment; it cannot command the coercive power of the state; it is often couched in general, even anodyne, language that leaves considerable room for “interpretation” by reluctant employers or timid administrators; and it generally positions workers as passive beneficiaries rather than active architects of workplace normativity.29 Does Harry issue, instead, a rousing call to reclaim national sovereignty and restore union power? Hardly. Harry pleads guilty to nostalgia, but not to naïveté: [P]erhaps one should simply acknowledge that, given the labour movement’s current and longstanding weakness, the choice may

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not be between hard law and soft law modes of regulation, but between soft law and none at all.30 Once one has begun to quote Harry Arthurs, of course, it is tempting to continue. There is no end of splendidly evocative passages that delight even as they demoralize the reader. And one’s own prose always pales by comparison. So I will continue to leaven mine with a liberal sprinkling of his. Increasingly for Harry, the way forward for workers is through struggle. The theme of struggle runs through Harry’s recent efforts to reframe the law of work as part of a larger field – “‘the law of economic subordination and resistance’ encompassing not only relations of employment but all economic relations characterized by comparable asymmetries of wealth and power.”31 He observes that “for brief moments economically subordinate people have been able to come together for limited purposes ... Perhaps out of these small victories, a new and larger vision of labour law will emerge, a vision that looks forward rather than backward, that is expansive and not exclusionary.”32 To be sure, the distinctive features of work, and of relations between those who labour and those for whom they labour, seem likely to reassert themselves and necessitate their own branch of the law. But that law might look different if it emerged out of a broader social movement of workers, tenants, consumers, and farmers. Whether in alliance with these others or not, Harry insists that workers and unions should continue to struggle in the political, economic, and cultural domains, without outsized illusions about the utility of struggle in the courts. He warns: “Don’t put your trust in the trickster,” that is, in the judiciary, whose occasional heroic blows for social justice are inevitably cabined and countered by more potent political and economic realities.33 Struggle outside the courts offers “a better rock to cling to than the Charter,” and “has enabled Canadian labour to survive, or at least to decline somewhat less dramatically than American labour.”34 This is a message that American workers and unions are now trying to put into action against Walmart, McDonald’s, and other behemoths of American capitalism. Unfortunately, they are up against some rather un-Canadian impediments in their struggle: if they win an organizing campaign, they will be barred in half the states – and across the country if the “right-to-work” movement eventually has its way in the Supreme Court – from collecting any

Canadian Labour Law as a Cautionary Tale 57

fees at all from those who choose to “free ride” on the union’s representational services.35 If they go on strike, they face the prospect of immediate permanent replacement, lawful under Supreme Court dicta from 1938 that have long since hardened into doctrine.36 And this is not to mention the state and local government workers, of whom most have no “right to strike” and many have no right to bargain collectively. In short, the struggles of American workers are hindered by some distinctive features of US labour law that might be vulnerable to a Charter challenge in Canada, or that reflect a body of constitutional law whose individualist tilt finds no collectivist counterweight as one now finds in Canada’s Charter jurisprudence. Of course, there is a constitutional “freedom of association” of a sort. But it is not one that has been especially labour-friendly or supportive of the forms of association and collective action that have historically been important to organized labour.37 Even if workers and unions should not imagine that the courts are a central locus of their struggles, the fruits of these litigation battles, and the fundamental rights and principles that courts burnish by wielding them against legislative hostility or indifference, are among the weapons that workers bring to those other domains of struggle. This is only to say that law matters, if only a little, and that Canada generally does it better, if only a little. I think Harry would agree with both propositions. The downward trajectory of organized labour in Canada, despite its dramatically more dynamic labour laws, carries ominous lessons that Harry has been trying to teach us in the United States: deep global economic forces, with a momentum that is sustained by ideology as well as competitive market forces, are challenging the capacity of both social movements and democratic politics to resist and regulate organized capital. Incremental reforms are not going to change this. And yet resignation or retirement is not the right response. Some kind of progress remains possible, and lessons can be learned, certainly between the “mutually intelligible” domains of Canadian and US labour law and politics. Just after the US presidential election of 2000, Harry Arthurs magnanimously offered me political sanctuary in Canada. I declined the offer. But I would like to believe that it remains open, like a multi-­­entry visa, for the opportunity it would afford to enjoy his wisdom and his wit about a dimension of social existence that stirs both our passions.

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n ot es   1 Harry W. Arthurs, “Compared to What? The u c la Comparative Labor Law Project and the Future of Comparative Labor Law,” Comparative Labour Law & Policy Journal 28 (2007): 591.   2 Ibid., 596.  3 See Sara Slinn, “Whither Wagner? Reconsidering Labor Law and Policy Reform,” Minnesota Law Review 98 (2014): 1 8 0 5 , at 1806–7.   4 Harry W. Arthurs, “Extraterritoriality by Other Means: How Labor Law Sneaks across Borders, Conquers Minds, and Controls Workplaces Abroad,” Stanford Law & Policy Review 21 (2010): 527, at 534–5.   5 Cynthia Estlund, “The Ossification of American Labor Law,” Columbia Law Review 102 (2002): 1527.   6 That saga included two visits to the Supreme Court: New Process Steel v n l r b , 560 U.S. 674 (2010) (holding that n lr b had no statutory power to act with fewer than three members); and n l r b v Noel Canning, 134 S.Ct. 2550 (2014) (holding that the president’s “recess appointments” to fill vacancies on nlrb in the face of congressional inaction were uncons­titutional, and that decisions issued by recess appointees were void).   7 For some of Arthurs’s recent reflections on the significance of Canada’s “dialogic” form of judicial review, see Harry W. Arthurs, “Social Rights, Labour Rights and the Constitution: A Cautionary Tale from Canada,” working paper and lecture delivered at uc la on 5 November 2014, 11–14.   8 See, for example, “Convention Concerning Freedom of Association and Protection of Right to Organize” (No. 87), 9 July 1948; “Convention Concerning the Right to Organize and Bargain Collectively” (No. 98), 1 July 1949. Compare i lo, “Ratifications for Canada,” http://www.ilo. org/dyn/normlex/en/f?p=1000:10011:0::NO:10011:P10011_DISPLAY_ BY,P10011_CONVENTION_TYPE_CODE:1,F, last accessed 7 July 2016 (listing i lo ratifications including Convention 87), with ilo, “Ratifica­ tions for United States,” http://www.ilo.org/dyn/normlex/en/f?p=1000: 11200:0::NO:11200:P11200_COUNTRY_ID:102871, last accessed 24 July 2016. Canada and the United States are thus among “only 24 countries in the world that have not ratified Convention No. 98.” See http://www.labourrights.ca/issues/fact3-canadas-record-ilo, last accessed 24 July 2016.   9 Not all have cheered. See Brian Langille and Benjamin Oliphant, “From the Frying Pan into the Fire: Fraser and the Shift from International Law to International ‘Thought’ in Charter Cases,” Canadian Labour and Employment Law Journal 16 (2012): 181.

Canadian Labour Law as a Cautionary Tale 59

10 See Saskatchewan Fed’n of Labour v Saskatchewan, [2015] S.C.C. 4 (Can.); Ontario (Attorney General) v Fraser, [2011] 2 S.C.R. 3 (Can.); Health Servs. & Support-Facilities Subsector Bargaining Ass’n v British Columbia, [2007] 2 S.C.R. 391 (Can.). 11 See John Logan, “A Global Day of Action in Support of the Right to Strike,” Truthout (18 February 2015), http://www.truth-out.org/news/ item/29178-a-global-day-of-action-in-support-of-the-right-to-strike#, last accessed 24 July 2016; and Martin H. Malin, “Collective Representation and Employee Voice in the U.S. Public Sector Workplace: Looking North for Solutions?” Osgoode Hall Law Journal 50 (2013): 9 0 3 . 12 From the US House of Representatives report in support of efc a : “Binding contract arbitration has a proven track record … In Canadian provinces where binding contract arbitration is available, it has served to encourage labor and management to settle their agreements on their own terms, knowing that the alternative may be an imposed agreement.” H.R. Rep. No. 110–23, at 25 (2007). See also Sara Slinn and Richard W. Hurd, “Fair­ ness and Opportunity for Choice: The Employee Free Choice Act & The Canadian Model,” Just Labour: A Canadian Journal of Work and Society 15 (2009): 104; Robert Quinn and John Leschak, “The Employee Free Choice Act: The Biggest Change in Labor Law in Sixty Years,” Re­­gional Labor Review (Fall 2009), http://www.hofstra.edu/pdf/academics/colleges/ hclas/cld/cld_rlr_fall09_employee_leschak.pdf (discussing how nlrb could adopt safeguards used by Canada in efc a’s card-check process). 13 See Daphne Gottlieb Taras, “Why Nonunion Representation Is Legal in Canada,” Relations Industrielles 52 (1997): 763, at 773–8. 14 David Weil, “Are Mandated Health and Safety Committees Substitutes for or Supplements to Labor Unions?” Industrial and Labor Relations Review 52 (1999): 339, at 358, citing Elaine Bernard, “Canada: Joint Committees on Occupational Safety and Health,” in Works Councils: Consultation, Representation, and Cooperation in Industrial Relations, ed. Joel Rogers and Wolfgang Streeck (Chicago, i l: University of Chicago Press, 1995). 15 The statutory language defining “labor organization” is very broad, and both this term and “employer domination” are read broadly in the iconic Supreme Court decisions. See n l r b v Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 249 (1939) (broadly reading “employer domination”); n l r b v Cabot Carbon Co., 360 U.S. 203, 211 (1959) (broadly reading “labor organization”). On the prevalence of employee representation plans that probably violate the n lra , see John Godard and Carola Frege, “Labor Unions, Alternative Forms of Representation, and the Exercise of Authority Relations in U.S. Workplaces,” Industrial and

60 Cynthia Estlund

Labour Relations Review 66 (2013): 142; Daphne Taras and Bruce E. Kaufman, “Non-Union Employee Representation in North America: Diversity, Controversy, and Uncertain Future,” Industrial Relations Journal 37 (2006): 513. 16 See Labour Program, Union Coverage in Canada, 2013 (11 June 2014), http://www.labour.gc.ca/eng/resources/info/publications/union_coverage/ union_coverage.shtml, last accessed 24 July 2016; Bureau of Labor Statistics, Union Members Summary (23 January 2015), http://www.bls. gov/news.release/union2.nr0.htm, last accessed 24 July 2016. 17 See Diane Galarneau and Thao Sohn, Long-Term Trends in Unionization (November 2013), http://www.statcan.gc.ca/pub/75-006-x/2013001/ article/11878-eng.pdf, last accessed 24 July 2016; Bureau of Labor Statistics, Union Members Summary (23 January 2015), http://www.bls. gov/news.release/union2.nr0.htm, last accessed 24 July 2016. 18 Elisabeth Kübler-Ross, On Death and Dying: What the Dying Have to Teach Doctors, Nurses, Clergy and Their Own Families (New York: Scribner, 196 9 ). 19 See Harry W. Arthurs, “Labour Law after Labour,” in The Idea of Labour Law, ed. Guy Davidov and Brian Langille (Oxford, uk : Oxford University Press, 2011), 2 7 –8; David J. Doorey, “Graduated Freedom of Association: Worker Voice beyond the Wagner Model,” Queens Law Journal 38 (2013): 511. 20 See Harry W. Arthurs, “The Hollowing Out of Corporate Canada: Implications for Transnational Labor Law, Policy and Practice,” Buffalo Law Review 57 (2009): 781. 21 Arthurs, “Social Rights, Labour Rights and the Constitution.” 22 Harry W. Arthurs, “Constitutionalizing the Right of Workers to Organize, Bargain and Strike: The Sight of One Shoulder Shrugging,” Canadian Labour & Employment Law Journal 15 (2010): 373, at 374–5. 23 Ibid., 375–6. 24 Ibid., 377. 25 For example, Harry W. Arthurs, “Federal Labour Standards Review, Fairness at Work: Federal Labour Standards for the 21st Century” (2006), http://www.labour.gc.ca/eng/standards_equity/st/pubs_st/fls/pdf/final_ report.pdf, last accessed 24 July 2016. 26 See Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation (New Haven, ct: Yale University Press, 2010); David J. Doorey, “A Model of Responsive Workplace Law,” Osgoode Hall Law Journal 50 (2012): 47. 27 Arthurs, “Extraterritoriality by Other Means,” 552.

Canadian Labour Law as a Cautionary Tale 61

28 Ibid. 29 Harry W. Arthurs, “Making Bricks without Straw: The Creation of a Transnational Labour Regime,” Osgoode Comparative Research in Law & Political Economy, Research Paper No. 28 / 2012, http://papers.ssrn. com/sol3/papers.cfm?abstract_id=2139204, 14, last accessed 24 July 2016. 30 Ibid., 15. 31 Harry W. Arthurs, “Labour Law as the Law of Economic Subordination and Resistance: A Counterfactual?” Comparative Research in Law & Political Autonomy 8 (2012): 3. 32 Ibid., 13. 33 Ibid., 15. 34 Arthurs, “Social Rights, Labour Rights and the Constitution,” 10. 35 The Supreme Court thus recognized a First Amendment right of employees to opt out of any mandatory union fees on the part of the “partial public employees” in Harris v Quinn, 134 S.Ct. 2618 (2014). The right-to-work movement is aiming to extend that ruling to the rest of the public sector, and eventually to the private sector through litigation, while also agitating for state “right to work” legislation (which bars collective bargaining agreements that impose mandatory union fees). 36 n l r b v Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). 37 Notwithstanding some valiant efforts to chronicle and resurrect a labourfriendly constitutionalism. See James G. Pope, “The Thirteenth Amendment versus the Commerce Clause: Labor and the Shaping of the Post-New Deal Constitutional Order, 1921–1957,” Columbia Law Review 102 (2002): 1; James G. Pope, “How American Workers Lost the Right to Strike and Other Tales,” Michigan Law Review 103 (2004): 518.

3 The Once and Future Industrial Citizen Gregor Murray Université de Montréal

To grapple with the work of Harry Arthurs is like spending a day climbing a peak in the Rockies: it’s majestic, breathtaking, even dizzying, and, just when you believe that you have reached the summit, you discover that you are in the midst of a mountain range where the peaks stretch beyond where the eye can see, indeed beyond comprehension. It’s with more than a little trepidation that any author comments on Harry’s work. The result of more than four decades of Arthurs’s intellectual endeavour is monumental, yielding an œuvre like no other in Canadian labour law. It is also an intellectual journey, which reveals so much about the changing world of work and employment in Canada and beyond. The required brevity of each chapter limits us to a meander around just a few peaks. The attentive reading of all of his work, the identification of its epistemological ruptures, the exploration of its deep contradictions and hidden meanings, and the conclusion as to what is to be done as a result of all of this remain a challenge still to be accomplished. If the analogy of the mountain range is any guide, this challenge is most likely to be done by Harry himself – a veritable self-elegy for which we will wait in hope! 1 introduction

This chapter focuses on the concept of industrial citizenship, which Harry Arthurs fused with the development of Canadian labour law.1 For Arthurs, industrial citizenship has offered a meta-narrative – a

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moral compass – with regard to the evolution of rights and democracy at work, echoing not only the aspirations of the founding scholars in the realm of industrial relations and labour law, but also its disappointed expectations. This arc clearly tilts towards workplace justice. Five decades later, the impediments are as sobering and daunting, as are his recent calls for a transformative intellectual project in which citizenship at work is likely to figure prominently. 2 industrial citizenship

Arthurs expressed much of the optimism for labour’s long march to full civil, political, and social rights in modern industrial societies in his path-breaking article entitled “Developing Industrial Citizenship: A Challenge for Canada’s Second Century.” His reading offers a compelling narrative of the evolution of labour law in Canada, both past and future, as the gradual and necessary affirmation of industrial citizenship. T.H. Marshall had already traced the development of the different dimensions of citizenship rights in a highly influential reading of two centuries of industrial progress achieved by British workers.2 Although that citizenship was not yet fully achieved, its main traits were increasingly evident in the development of both the post-war welfare state and the increasing maturity of an autonomous body of collective labour law that added the notion of social rights to the development of property and political rights in the centuries-long march towards an enhanced conception of citizenship. Arthurs built on this vision and undoubtedly echoed some of the pervasive optimism of three decades of post-war economic and social growth. He foresaw a seemingly inevitable affirmation of collective rights in the economic sphere, which he labelled “industrial citizenship”; it was an unfolding process, with both a history and a future. Economic insecurity was to be tackled by the growth of collective bargaining, to which the state could contribute directly through the growth of public-sector collective bargaining and indirectly through enabling legislation in a variety of industries. The growth of the welfare state and the widening embrace of social safety nets would also lessen economic insecurity. Although Arthurs did not yield to the blithe optimism of the US industrial pluralists,3 there was scope for him to anticipate a future trajectory for Canadian public policy on work and collective labour

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law. It was to foster more stable forms of industrial pluralism in the world of work in industrial societies, in which legitimately contending collective rights would come to form agreed-upon norms on the basis of recognized collective rights. This vision was predicated on the crystallization of these collective labour rights, and gave rise to the new academic discipline of labour law. In this way, underpinned by the pluralism of collective actors at the (industrial) workplace, industrial citizenship was an integral part of a broader framework of economic and social citizenship towards which societies should and would evolve. Both collective bargaining and the provision of collective and individual rights by the state were means for ensuring the true exercise of the different dimensions of this industrial citizenship. 3 t h e g r e at u n r av e l l i n g

In retrospect, one cannot but be struck by the way that this roadmap to the future, encapsulated as industrial citizenship, constituted a paradigm for the fields of industrial relations, labour law, and public policies about work and employment, serving as a normative t­ emplate and increasingly making its way into the major international instruments defining fundamental human rights. It is clear, however, that the theoretical ambitions underlying industrial citizenship, especially its most optimistic post-war versions, have faltered in the face of multiple obstacles over recent decades. Harry Arthurs is now more inclined to refer to the “demise,” and not to the “rise,” of industrial citizenship,” not least in terms of the evolution of public policy. In his inimitably wry penchant for self-parody, he later wrote: “My theory of industrial citizenship had, and still has, certain charms, though accurate description and prediction are obviously not among them.”4 For Arthurs,5 his hopes for industrial citizenship were confounded by what he labels the “new economy” (notably globalization) and the “new legality” (the movement to empower citizens resulting in a gap between law’s promise and performance, not least because of the decoupling of regulatory law and state law). It is worth acknowledging how significant changes in the political economy contributed to this unravelling of industrial citizenship, because they are central to the contrast between Arthurs’s earlier hopes for industrial citizenship and his more dour assessment of its prospects three decades later.6 A first change stems from the internationalization of production networks through the concentration on higher value-added activities

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and the resequencing of production and services across borders.7 This reflects the liberalization of trade, the possibilities offered by new information and communications technologies to control and coordinate subsidiary and supplier-network activity across borders, and the outsourcing (offshoring) of products and services across borders. Micklethwait and Woodridge refer to the “unbundling” of the company, typified by firms that actually make less and less of what they develop and sell, as opposed to merely outsourcing their production.8 Such companies no longer require the same kind of organizational footprint to conduct their activities in a particular territory, and exhibit considerable mobility in the location of their activities. A second change comes from the financialization of m n cs.9 With the ascendancy of shareholder value as the predominant mode of corporate governance, firms seek to manage market volatility through the optics of short-term results. Through creative transfer pricing and corporate shells, mnc s can re-allocate tax liabilities between jurisdictions for the greatest financial advantage. Moreover, with their ever greater reliance on capital markets, m n cs prefer to be listed on  major stock exchanges and relocate their headquarters or core functions in response to the perceived demands of capital markets,10 which means that proximity to the stock exchanges of New York and London is increasingly more important than nearness to those in Canada. A third change arises from the liberalization and regionalization of trade arrangements, which facilitate the location of lower- and higher-cost activities in different countries within regional trade zones. This process was already well advanced with the creation of the European common market in the 1990s11 and the increasing coordination of ownership, production, and product and capital markets during the subsequent decade. The recent possibility of the legal incorporation of the European Company12 further exacerbates the regulatory competition between member states and enhances the “exit-power” of mnc subsidiaries not satisfied with a given state’s public policy or other arrangements on issues such as corporate governance, taxes, and employee representation.13 The North American Free Trade Agreement has similarly challenged the autonomy of Canadian subsidiaries.14 A fourth change concerns the consequences of these organizational, financial, and regulatory transformations on patterns of employment and the distribution of rewards. The possibility of the

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permanent pursuit of flexibility has undermined many of the stable patterns of predictable employment on which industrial citizenship was predicated. This has led to the implosion of archetypal salaried work (full-time, indefinite) in favour of greater insecurity and growing inequality, with attendant negative consequences on the health and psychosocial well-being of a significant portion of the workforce. Moreover, this great unbundling is also linked to the rise of services, which are increasingly differentiated from industrial production. Security guards, cleaners, cafeteria workers, and payroll clerks all used to belong within the umbrella of the firm, sharing the same employer as the aggregator of industrial citizenship rights. 4 consequences for industrial citizenship

These changes in the Canadian political economy have exerted a significant impact on the very actors who should have been carrying forward this new industrial citizenship. Over the last two decades, Arthurs has made a series of scintillating contributions both exploring and deploring this impact and its consequences for, inter alia, industrial citizenship. A first theme, and a remarkable empirical contribution, concerns what he labels the “globalization of the mind” as it pertains to Canadian elites, including academics, the legal profession, culture, and public administration.15 In the context of continental economic integration and the pervasive influence of US neo-liberalism in Canada, he argues that conventional wisdom and practice in the two countries, in a number of areas, seem to have converged around American ­models, while distinctive Canadian ways of seeing and doing things appear to be drifting into eclipse.16 Moreover, “power is both mobilized and mediated through globalization of the mind,” producing a degree of like-mindedness, and it is disconcerting to observe the rapidity with which Canadian policies, laws, and practices have been brought into line with those of the new global regimes.17 A second theme concerns what Arthurs views as the reduced autonomy of Canadian managers, ever more subservient in their Canadian subsidiaries of United States mn cs. The notion of the “hollowing out” of corporate functions and structures is directly

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related to the pressures outlined above. In a series of contributions,18 and drawing on his work on the globalization of the mind, Arthurs seeks to demonstrate the change in the moral economy of national subsidiaries, where they espouse sets of values that have more in common with those of the dominant country of origin than those of the subordinate host country. In his view, the Canadian subsidiaries of United States mnc s have been transformed from “miniature replicas” of their parent firms into units with more specialized functions and narrower mandates.19 In so doing, they have moved from widely held, publicly traded corporations on domestic stock exchanges, with high-profile boards, to wholly owned subsidiaries without Ca­­ na­dian boards. Arthurs argues that their subsidiary managers have been stripped of much of their authority and autonomy, reporting directly to US-based line managers, as core functions (advertising, finance, legal affairs) are shifted from the subsidiary to the parent headquarters. The financialization of parent companies further di­mi­ nishes the connectedness of subsidiaries in Canada, as elsewhere. For Arthurs, these pressures result in reduced decision-making power and corporate institutional footprint in Canada, compromising policy autonomy and even cultural specificity, as the national institutional purchase on transnational capital diminishes and so too does the capacity of domestic elites to chart their own course in the global political economy. A third theme concerns the declining strength of the labour movement. While the industrial citizenship paradigm once aspired to universal coverage for collective bargaining, the strength of organized labour appears headed in the opposite direction. Despite two decades of union renewal efforts, the continuing challenges to organized labour highlight the distance to the realization of industrial citizenship: the erosion of the primacy of collective bargaining as the prime regulator of working conditions; the legitimacy of unions to speak on behalf of all workers; the disconnect between a basket of traditional union values and the fragmentation characteristic of this new workforce; and, indeed, the hostility of other social actors to the labour movement. A final theme, and one that has been at the core of a wide range of Arthurs’s contributions, concerns state policy. As collective social actors have weakened, so too has their political representation. Social citizenship rights were developed to deal with the insecurity of the last great recession and of the Second World War (pensions, unemployment insurance, family allowance, health insurance, and other

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worker programmes). As noted by Jane Jenson,20 the state was seen to be a counterweight to the market because the market was unable to guarantee the security and well-being of all citizens. The social state or welfare state entailed, over a long period, the acquisition of various citizenship rights to accompany workers through their life paths and the satisfactions and vicissitudes that these can entail in the labour market (education, employment, training, health, unemployment, family leave and support, and so on). Some states have succumbed to the neo-liberal attack – withdrawing economic security in favour of market discipline and incentives. Other states have shifted the focus away from work to social investments, such as early childhood education, designed to improve intergenerational prospects in a hypercompetitive labour market. This shift in public policy is taking place in a context described by Arthurs as the “new legality,” which, in the light of an increasing gap between regulatory and state law,21 entails both the withdrawal of the state in favour of hybrid, actor- (read corporate-)driven forms of regulation, and the illusory constitutionalization of rights toward which, because of their inherent weakness, many in the labour movement have been seduced. It is especially ironic that, over the last decade, Arthurs has invested so significantly in a number of public policy forays – each designed to push forward some dimension of citizenship at work. The overarching theme through his role as commissioner in three major public policy initiatives was that of fairness. This is the narrative thread that runs through his three major policy reports: the 2006 report on labour standards (Fairness at Work: Federal Labour Standards for the 21st Century; see also chapter 5 in this volume by Gilles Trudeau); the report on old age social security through pensions in 2008 (A Fine Balance: Safe Pensions / Affordable Plans / Fair Rules); and the report on workplace health and safety and social insurance to compensate injuries in 2012 (Funding Fairness: A Report on Ontario’s Workplace Safety and Insurance). In each case, the clarity of his analysis has run up against the weight of economic interest, sharpening his overall critique of the possibility of achieving industrial citizenship. In the face of increasing disparities of fortune relative to income and degrees of social protection, the distance from industrial citizenship could hardly be greater. The net result is institutional fragmentation, ranging from problems of access to natural justice, and from due process to a basic lack of protection.

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5 the future of industrial citizenship

Harry Arthurs has not, however, abandoned his early hopes for industrial pluralism as a mode of governance in the world of work. Such pluralism was intended to be populated by actors ready to recognize a plurality of interests, to play by the rules of the game as they had evolved through collective autonomy over time, and, broadly speaking, to embrace fairness as a societal objective. For Harry Arthurs, it is the world that has momentarily rejected such industrial pluralism, and not he himself who has jettisoned the project. Over recent years, and with ever greater urgency, he has sought to articulate a more critical and encompassing intellectual edifice. In contrast to those who countenance creeping neo-liberalism in their accommodation to power, Harry Arthurs is an organic intellectual for social change. Some have argued the merits of a more embracing paradigm of citizenship at work, as both a counter-narrative to the prevailing neoliberal order and a normative frame to link economic and social security, rights at work, and economic governance through enhanced democracy and participation.22 It is also clear that Arthurs does not dispute such an aspiration. He writes: [I]ndustrial citizenship ... is, finally, about the attempt to make the New Economy less volatile and brutal, so as to ensure a ­modest measure of security, dignity and justice for us all. So long as we aspire to these values, so long as we struggle to find practical means to realize them, reports of the demise of industrial citizenship may indeed be premature.23 However, Arthurs remains entirely sceptical in the absence of the social forces to realize this paradigm, and views the projects for the constitutionalism of labour rights, in all their forms and usages, as doomed to failure.24 Arthurs’s earliest research, notably on the historical development of administrative law, was rooted in the understanding of the interconnectedness of social change. Employment protection was not a narrow seam in the nineteenth-century United Kingdom. Rather, it related to a broader conception, an embrace of the quality of life, which included the abolition of slavery and indentured labour; the promotion of education, parks, drinking water, housing, and health;

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and the expansion of civil rights through universal franchise. Such a reading shares much with an optimistic Marshallian conception of a gradual expansion of rights from property rights, to civic or political rights, to social rights. Arthurs’s aspirational embrace of industrial citizenship was therefore hardly surprising. The construction of the post-war welfare state and the expansion of trade unionism and collective bargaining further appeared to confirm this reading and gave rise to some of Arthurs’s most optimistic texts, even though he framed them as challenges still to be conquered. He has recently returned to this theme, with great clarity and urgency, but now as a more comprehensive intellectual project to be accomplished over a much longer and more uncertain term. This turn is the result of his penetrating analysis of how the once-fulsome promises of industrial citizenship are likely to remain unrealized; of the pervasive delusions of Canadian legal scholars who place their hopes in the constitutionalization of labour rights; of how Canadian corporate managements are being hollowed out and morally diminished; of how the globalization of the mind has crept into multiple fields ranging from the legal profession, to the corporate elite, to purveyors of public policy; and of how there seems to be a pervasive weakness of social forces to counter these trends. In Arthurs’s early work, like that of many other industrial pluralists in the post-war period, there was an underlying assumption about a fundamental equation between power and fairness: namely, that power had to bend to fairness. While the recommendations in each of his recent public policy forays were carefully calibrated to construct bridges from a transformed labour market and workplace to a better society, the experience of contact with the multiple interests at play was cautionary in revealing the extent to which his underlying assumptions were challenged. This required a paradigm shift. His fundamental analysis is that the appeal to analytical acuity and a compelling sense of fairness – so characteristic of the assumptions informing generations of industrial pluralist scholars who founded the fields of labour law – was insufficient. His policy experiences pointed to the need for a broader remit, more likely to capture the current epochal social change. In a 2013 article on reframing labour law as the “law of economic subordination and resistance,”25 Arthurs highlights the conceptual and normative contradictions of the notion of labour law, which emerged from a multiplicity of often incoherent sources as an academic discipline in the first decades of the twentieth century. More

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than ever, given the decline of unionism and collective bargaining and the evanescence of class consciousness on the part of the social classes defined by their relationship to subordinated work, the foundational categories of labour and worker are emptied of their meaning. In an effort to imagine how things might be otherwise, Arthurs offers a counterfactual, by envisaging the dynamics of a labour law that is integrated into a larger whole, which he labels the right of resistance to economic subordination. He argues that epochal change in labour regulation, be it the reform movement of nineteenth-century England or the emergence of the Wagner model in the United States in the 1930s, has been part of a larger social project, embracing many parts of the population (not only workers, but also the unemployed, the retired, tenants, farmers, consumers, small shareholders, and so on). For Arthurs, the current crisis of capitalism and the vast social movements that it potentially provokes should incite scholars to focus on the right of resistance to economic subordination, which would extend well beyond the far-too-narrow boundaries of what we currently think of as labour law.26 This message was further reinforced in a 2014 article on the role of industrial relations research with regard to public policy.27 His core analysis is that labour science has turned full circle because of basic inequalities and problems of access to fundamental justice at work and in society as a whole. This is why scholars should turn away from research that seeks to influence the public policy of the day; and then, as we once did, he writes, we can generate the kind of research that the historical moment requires: research that challenges, research that tells inconvenient truths about policies and practices that are not working, research that exposes assumptions and structures that are entrenching inequality and legitimating social dys­ function, research that breaks taboos about what is corporate “best practice” or “realistic” public policy, research that raises the normative questions that are so often absent from orthodox theorizing and dominant methodologies.28 This requires, in his view, a veritable reinvention of the study of work and employment, so that it will indeed be fit for purpose at the historical moment when the need for it becomes both obvious and urgent. That moment

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might arrive tomorrow or ten or twenty years from now. But there will come a moment when we have all had enough of unstable markets, lopsided power relations, widespread unfairness and declining living standards. When that moment arrives, IR [industrial relations] scholars who have enrolled in the new discipline of economic power and resistance will become very influential indeed – and useful as well.29 What is most apparent is that Arthurs has become, through this process, a radical visionary. For those concerned with citizenship at work and beyond, there is every reason to be engaged in his call to reinvent the study of work and employment. To do so requires (as does the world of work itself) a much larger vision of social change, since you cannot have citizenship at work if the notion of citizenship is impoverished in other spheres of social life. We might argue – a trifle optimistically for Arthurs’s taste – that the challenges outlined above (the affirmation of a wider range of individual and collective social and professional identities; the implantation of new organizational models for the production of goods and services; and the current policy, which embraces neo-liberalism, the increasing transnationalization of economic and social relations, and increasing inequality) present an opportunity for reimagining citizenship at work in a global era. Such a future “citizenship at work” project must be fundamentally recast in order to offer a new normative paradigm for understand­ ing and reconstructing the world of work. This is likely to embrace a different gender contract about work, the fragmentation and dematerialization of traditional notions of workplace and employer, the link between workers in the South and the North along global production networks, the recasting of collective identities, and the importance of work that confers meaning, develops capacity, and is environmentally sustainable. It will certainly be a strongly contested project, over the long term, for which the narrative and analytical tools developed by a new generation of researchers will be essential, inasmuch as the moral compass of the project is aligned to counter the asymmetrical faces of power at work and in society.

N ot es   1 Harry W. Arthurs, “Developing Industrial Citizenship: A Challenge for Canada’s Second Century,” Canadian Bar Review 45 (1967): 786–830.

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  2 T.H. Marshall, Citizenship and Social Class and Other Essays (Cambridge: Cambridge University Press, 1950).   3 See, for example, Clark Kerr, “Industrial Relations and the Liberal Pluralist,” in Industrial Relations Research Association, Proceedings of the Seventh Annual Meeting (Madison, w i : Author, 1955); Clark Kerr, John T. Dunlop, and Frederick H. Harbison, Industrialism and Industrial Man: The Problems of Labor and Management in Economic Growth (Cambridge, m a : Harvard University Press, 1960).   4 Harry W. Arthurs, “The New Economy and the New Legality: Industrial Citizenship and the Future of Labour Arbitration,” Canadian Journal of Labour & Employment Law 7 (1999): 45–64, at 46.  5 Ibid.   6 Gregor Murray, Patrice Jalette, Jacques Bélanger, and Christian Lévesque, “The ‘Hollowing Out’ of the National Subsidiary in Multinational Companies: Is It Happening, Does It Matter, What Are the Strategic Consequences?” Transfer: European Review of Labour and Research 20 (2014): 217–36.   7 Peter Dicken, Global Shift: Mapping the Changing Contours of the World Economy, 6th ed. (London: The Guilford Press, 2011).   8 John Mickelthwait and Adrian Wooldridge, The Company: A Short History of a Revolutionary Idea (New York: The Modern Library, 2003), 128 et passim.   9 William Lazonick, “The Financialization of the US Corporation: What Has Been Lost, and How It Can Be Regained,” Seattle University Law Review 36 (2013): 857–909. 10 Julian Birkenshaw, Pontus Braunerhjelm, Ulf Holm, and Siri Terjesen, “Why Do Some Multinational Corporations Relocate Their Headquarters Overseas?” Strategic Manegement Journal 27 (2006): 681–700, at 697. 11 Harvie Ramsay, “Le Défi Européen: Multinational Restructuring, Labour and EU Policy,” in Behind the Myth of the European Union: Prospects for Cohesion, ed. Ash Amin and John Tomaney (London: Routledge, 1995), 174–97. 12 Council Regulation (EC) No. 2157 / 2001 of 8 October 2001 on the Statute for a European Company (S E). 13 Sandra Schwimbersky and Michael Gold, “The European Company Statute: A Tangled History,” in A Decade of Experience with the European Company, ed. Jan Cremers, Michael Stollt, and Sigurt Vitols (Brussels: European Trade Union Institute, 2013), 49–66, at 63. 14 Alan Rugman, Alain Verbek, and Wenlong Yuan, “Re-conceptualizing Bartlett and Ghoshal’s Classification of National Subsidiary Roles in the

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Multinational Enterprise,” Journal of Management Studies 48 (2011): 253–77. 15 Harry W. Arthurs, “Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields,” Canadian Journal of Law & Society 12 (1998): 219–46. 16 Ibid., 244. 17 Ibid., 245. 18 Harry W. Arthurs, “The Hollowing Out of Corporate Canada,” in Globalizing Institutions: Case Studies in Regulation and Innovation, ed. Jane Jenson and Boaventura de Sousa Santos (Aldershot, uk : Ashgate Publishing, 2000), 29–51; Harry W. Arthurs, “The Hollowing Out of Corporate Canada: Implications for Transnational Labor Law, Policy and Practice,” Buffalo Law Review 57 (2009): 781–802. 19 Arthurs, “The Hollowing Out of Corporate Canada: Implications,” 785. 20 Jane Jenson, “Changing Perspectives on Social Citizenship: A Cross-Time Comparison,” in Social Policy and Citizenship: The Changing Landscape, ed. Adalbert Evers and Anne-Marie Guillemard (Oxford, uk : Oxford University Press, 2013), 57–79, at 59. 21 Harry W. Arthurs, “Labour Law without the State?” The University of Toronto Law Journal 46 (1996): 1–45. 22 See Michel Coutu and Gregor Murray, eds., Travail et Citoyenneté: Quel Avenir? (Quebec: Presses Université Laval, 2010); Guy Mundlak, “Industrial Citizenship, Social Citizenship, Corporate Citizenship: I Just Want My Wages,” Theoretical Inquiries in Law 8 (2007): 719–48. 23 Harry W. Arthurs, The New Economy and the Demise of Industrial Citizenship (Kingston, on : i rc Press, 1997), 1–20, at 18. 24 Harry W. Arthurs, “The Constitutionalization of Employment Relations: Multiple Models, Pernicious Problems,” Social and Legal Studies 19 (2010): 403–22, at 416. 25 Harry W. Arthurs, “Labor Law as the Law of Economic Subordination and Resistance: A Thought Experiment,” Comparative Labor Law & Policy Journal 34 (2013): 585–605. 26 Michel Coutu, Martine Le Friant, and Gregor Murray, “Broken Paradigms: Labor Law in the Wake of Globalization and the Economic Crisis,” Comparative Labor Law & Policy Journal 34 (2013): 565–83. 27 Harry W. Arthurs, “From Theory and Research to Policy and Practice in Work and Employment – And Beyond?” Industrial Relations / Relations Industrielles 69 (2014): 423–46. 28 Ibid., 429. 29 Ibid., 432–3.

4 A Tale of Two Harrys: The Life and Demise of Industrial Pluralism in Canada Eric Tucker Toronto

“It was the best of times, it was the worst of times …” Charles Dickens, A Tale of Two Cities (1859)

1 introduction

Canada’s industrial relations system was born of the industrial conflict that escalated during World War II and persisted at its end. Workers were demanding the right to be represented by an independent trade union of their choice and to have the terms and conditions of their employment determined through collective bargaining. They hoped that a system of free collective bargaining would bring them a measure of workplace justice, which they understood to require both fair wages and fair treatment. Employers needed a disciplined workforce that would accept management direction and, more importantly, would not regularly resort to work stoppages to obtain union recognition and resolve shop-floor disputes. The industrial relations system, created by order-in-council during the war and by legislation after, sought to craft a compromise. Employers would be required to recognize and bargain with unions that achieved majority support as determined by an administrative board and would be bound by collective agreements as interpreted by neutral arbitrators, in exchange for unions accepting the

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employer’s right to manage and being prohibited from striking to gain recognition or to enforce the agreement. This arrangement came to be known as “industrial pluralism,” in part because it reflected the vision of a group of theorists known as industrial pluralists who shared the view that the labour problem under capitalism could be resolved by the creation of institutions that would build on the overlapping interests of workers and employers in efficient production, while providing a mechanism for a more equitable sharing of its benefits that, in turn, would fuel demand and create a virtuous circle of increasing production and consumption. For several decades, the post-war industrial relations system produced real gains for unionized workers, who saw their standard of living rise and were protected from arbitrary treatment at work. Moreover, collective bargaining raised the general conditions in the labour market, thereby benefiting some non-unionized employees. That system, however, has been in a state of decline and crisis for many years. Private-sector union density is in decline and union bargaining power is weakening. Public-sector unions, which now comprise the largest part of the labour movement, are facing increasing government hostility manifested in frequent resorting to wage-restraint, essentialservice, and back-to-work legislation, creating a condition of “permanent exceptionalism” in which collective bargaining is losing its ability to realize the industrial pluralists’ vision of workplace justice.1 Indeed, it is now the “gloves off” non-unionized world of precarious employment that is pulling labour market conditions downward.2 Harry Arthurs’s career spans this transformation. He was not present at the birth of industrial pluralism in Canada, but, when he entered academic life in the early 1960s, the system was in its prime and Arthurs quickly established himself, through his academic writing and his labour-arbitration practice, as the leading industrial pluralist of his generation. The bulk of this chapter examines that work, focusing on its strength from within the pluralist paradigm, but also identifying the ways in which Arthurs’s acceptance of the paradigm limited his understanding of the real sources of danger to its survival. When Harry Arthurs became president of York University in 1985, he ended his arbitration practice and took a break from his labour law scholarship. Following the expiry of his term in 1992, a different Harry emerged, this time as the voice pronouncing the death of industrial pluralism and urging that new paths had to be broken. This more recent body of scholarship, perhaps better known to

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current generations of scholars than the first, is the subject of the second, briefer part of this chapter. The story of the two Harrys provides a useful lens through which to understand the history of industrial pluralism: its aspirations and blind spots; the reasons for its demise; and the struggle to find new paths that will lead toward the achievement of workplace justice. 2 i n d u s t r i a l p l u r a l i s m u n d e r w e l fa r e s tat e c a p i ta l i s m : t h e b e s t o f t i m e s

When Harry Arthurs joined the faculty of Osgoode Hall Law School in 1961, collective bargaining was a vibrant institution in Canada. The Canadian variant of the American Wagner Act model, substituting labour board certification for recognition strikes and grievance arbitration for shop-floor action to enforce collective agreements (rights disputes), and imposing conditions on when strikes and lockouts over interest disputes were lawful, was well entrenched.3 Union density had risen to a little less than one-third of the non-agricultural workforce, and most of this growth was in the private sector. Indeed, private-sector union density peaked in 1961.4 The law sharply reduced recognition and rights strikes, but was less successful in reducing interest strikes, which became more frequent through the 1960s, peaking in the mid-1970s.5 Arthurs’s first academic article announced the arrival of the leading voice of the second generation of engaged industrial pluralist scholars, following a path pioneered by Bora Laskin, who was both an academic and a labour arbitrator prior to his appointment to the bench.6 Published just prior to his becoming a faculty member, Arthurs’s article, entitled “Tort Liability for Strikes in Canada: Some Problems of Judicial Workmanship,”7 scrutinized the work of Cana­ dian judges in adapting and inventing tort law to contain strikes when they occurred at times when they were not permitted under collective-bargaining statutes or when the targets of picketing were parties other than the immediate employer. Arthurs was not unsympathetic with the need to identify and enforce limits on the use of economic pressure, but found fault with the way the courts had gone about this task. This was not just because of flawed legal reasoning, as the title of the article might have suggested, but, more fundamentally, because judges were ill-suited to the task of regulating industrial conflict precisely because of their commitment to the common

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law and the individualistic values embedded in it. As common law judges with little or no experience in industrial relations, they were not only out of touch “with social realities,” but were “often guilty of uncritical adherence to standards of a bygone age.”8 But if boundaries needed to be drawn, who was to do the drawing, if not the courts? The first generation of industrial pluralists had a ready answer: they would, whether in their capacity as labour arbitrators or as members of labour relations boards. Arthurs drew his readers’ attention to two arbitration awards by Bora Laskin arising out of grievances brought by employers against unions in the context of unlawful wildcat strikes, in which Laskin had held that arbitrators had the power to award damages.9 In approving these awards, Arthurs articulated three core beliefs of industrial pluralists: the collective agreement was a consensual constitution; responsible citizenship needed to be enforced; and arbitrators, who were familiar with the realities of labour relations, could be entrusted to administer a regime of industrial justice. These and other central tenets of industrial pluralism informed Arthurs’s writing in the following years. In 1963, he tore a strip off the Ontario Court of Appeal for its decision in Hersees of Wood­ stock v Goldstein, in which the judges infamously fashioned a new tort of secondary picketing.10 His criticism was “not as to the result but as to the method of reaching it.”11 Apart from the poor quality of the legal reasoning, Arthurs characterized the judgment as “bold judicial policymaking” which “raises the gravest issues of the proper relationship of court and Commons” because “common-law litigation is a poor substitute for legislative debate in the resolution of deep-seated social controversies.”12 A subsequent case comment followed, this time dissecting two inconsistent British Columbia Court of Appeal decisions addressing the legality of labour picketing on shopping centre property.13 Here again, the focus of Arthurs’s critique was not the results of the cases, but rather “the technique of analysis that produced them … With respect, the attempt to shackle the analysis of labour relations problems with ancient bonds of real property law is inappropriate.”14 Arthurs then went on to apply an industrial pluralist’s approach to the problem, “weighing up the competing interests of the labour union and the picketed tenant or landowner in the special context of shopping centre picketing,”15 reaching the conclusion that peaceful informational picketing should be permitted.

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The case comment signalled a shift in the focus of Arthurs’s scholarship, away from a narrower concern with the judicial threat to industrial pluralism towards a deepening engagement with the dynamics and institutions of collective bargaining. That same year, Arthurs published an article entitled “The Dependent Contractor: A Study of the Legal Problems of Countervailing Power,” in which he explored whether collective bargaining should be extended to groups of economically vulnerable workers who were legally classified as selfemployed contractors and thus outside the scope of labour relations statutes but who nonetheless shared the labour market with unionized workers. The analysis was framed by the recognition that pluralist societies face a dilemma because they embrace conflicting norms of  group power and economic individualism and countervailing power and competition.16 A balance needed to be struck and this could be done by devising institutional arrangements “for redressing the unequal distribution of private power.”17 Arthurs’s proposal, that labour relations statutes should be amended to permit dependent contractors to engage in collective bargaining, was eventually accepted in Ontario and in most of Canada a decade later.18 In the final article in this portfolio of Arthurs’s early academic work, “Developing Industrial Citizenship: A Challenge for Canada’s Second Century,” Arthurs articulates the emerging norms and institutions of industrial pluralism through the lens of industrial citizenship and identifies its challenges. As such, Arthurs presents an internal perspective on the pluralist enterprise, focusing on the trade-offs between rights and responsibilities and economic security and industrial freedom. He also returns to the ongoing concern of pluralists that courts will impose the foreign norms of the common law on the indigenous industrial jurisprudence being produced by arbitrators in their awards which interpret and apply collective agreements.19 Arthurs had ample reason to be concerned about these matters. The 1960s, and particularly 1965–66, were years marked by a rise in labour militancy and characterized by wildcat strikes – that is, strikes that were unlawful under industrial pluralist law because they occurred during the life of the collective agreement, thus bypassing arbitration as the exclusive avenue for resolving rights disputes.20 In a paper jointly authored with John Crispo entitled “Industrial Unrest in Canada: A Diagnosis of Recent Experience,” Arthurs examines the reasons for this outbreak, identifying a laundry list of factors ranging from workers’ demand for a bigger slice of the pie in an affluent

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society, to the inability of unions to address unilateral employer changes to the labour process that negatively affect working conditions. These were all issues that could be addressed within the industrial pluralist framework and were not seen as fundamental challenges to its premises. Indeed, when explaining the reasons for labour’s increased defiance of the law, the authors emphasize the unfairness of  the courts in regulating industrial conflict through the labour injunction, an artefact of the common law. Oddly, the authors say very little about the willingness of workers to strike during the life of the collective agreement, which challenged a fundamental principle of Canadian industrial pluralism.21 Never one to be content simply as a critic sitting on the sidelines, Arthurs took up the challenge of administering and massaging the industrial pluralist regime from the inside – as a labour arbitrator hearing disputes over the interpretation and application of collective agreements. Here, he came face to face with the conflicts besetting the regime from within its parameters. Unions were pushing to have arbitrators rein in managerial prerogatives, while management used arbitration to insure that trade unions behaved responsibly. As an arbitrator, Arthurs had the opportunity to define concretely the meaning of the new industrial citizenship. Arthurs’s first published arbitration award required him to address the scope of management rights. The award demonstrated his strong aptitude for this task.22 The case involved a run-of-the-mill seniority claim in which workers from one department claimed their seniority rights were being violated when they were sent home fifteen minutes early even though less senior employees in another department were being kept on. The legal issue was whether being sent home constituted a lay-off, which, according to the collective agreement, had to be by seniority among qualified employees. In deciding the case, Arthurs managed to achieve what any young arbitrator in his position would have hoped to accomplish: that is, to give each party something. He provided the union with an expansive definition of a lay-off and an interpretation of the evidence that allowed one of the three grievors to succeed, but he also recognized that management’s judgments about the relative merits of employee qualifications should only be disturbed by an arbitrator if the union satisfied the “very heavy onus” placed upon it when challenging this exercise of managerial authority.23 Arthurs’s arbitration practice grew and soon he was being called upon to decide cases that engaged the most significant issues of the

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day. Between 2 June and 4 July 1966, Arthurs issued three awards that deeply influenced how future arbitrators understood the scope of management rights and union responsibilities. The first award of this trilogy, Russelsteel, raised the highly contentious issue of whether an employer enjoyed the freedom to contract out bargaining unit work as an aspect of its reserved management rights, or whether it had to negotiate for express recognition of this right.24 By the time of this grievance, numerous arbitrators had already considered the issue and a large majority had favoured an expansive reading of management rights. However, not all arbitrators embraced this so-called “reserve theory” of management rights. A notable opponent was Bora Laskin, who, as an arbitrator, had rejected it as based upon an understanding of the rights and duties of the parties drawn from the norms of the common law contract of employment regime, “which has ceased to exist” after the parties have entered into the collective bargaining regime.25 Arthurs rejected the temptation to address the issue upon the basis of “over-broad philosophical considerations” and instead called for “pragmatic and realistic solutions to particular problems.”26 He turned to the industrial relations “climate,” which took into account the predominant arbitral jurisprudence favouring an expansive definition of reserve management rights. Therefore, he reasoned, the parties would have known that, in the absence of language limiting management rights, most arbitrators would have recognized that management retained the freedom to contract out; and so that must have been the parties’ understanding. This reasoning allowed Arthurs to give effect to the broad view of management rights without having to indicate whether he agreed with it or not; it was the new industrial relations norm against which bargaining took place. While Arthurs’s award acceded to an expansive interpretation of management rights as it applied to the organization of production, he stood his ground firmly in defending the power of arbitrators to review the grounds for discharge and discipline and to substitute lesser penalties when appropriate. In his award in Port Arthur Shipbuilding, Arthurs hewed closely to Laskin’s approach: [T]his board of arbitration is charged only with the administration of the collective agreement, and was not intended to provide a forum for the enforcement of common law rights … [T]he collective agreement does create an entirely new dimension in the employment relationship: it is the immunity of an employee from

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discharge except for just cause … [T]he umbilical cord has been severed and the new doctrines of labour arbitrators have begun to lead a life of their own.27 In the result, Arthurs found that, while the grievors had absented themselves from work without permission and were subject to dis­ cipline, for a variety of reasons discharge was not warranted. He substituted lengthy suspensions instead. Management was not pleased with Arthurs’s interference with their disciplinary powers and challenged the award in court. The employer succeeded at first instance, but Arthurs’s award was restored by the Ontario Court of Appeal, where Laskin now sat. Laskin wrote the majority judgment endorsing Arthurs’s invocation of industrial pluralist principles. However, the final judicial word went to the Supreme Court of Canada, where a una­ nimous court sharply rebuked the arbitration board for its meddling: The question before them [the board] was, could an honest management, looking at the group of employees as a whole and at the interests of a company, have reached the conclusion that they did? Any deeper scrutiny took the board beyond is authority.28 The final triumph, however, was Arthurs’s: the following year, the Ontario legislature enacted legislation empowering arbitrators to substitute lesser disciplinary penalties when they thought it was appropriate to do so.29 The last decision in this trilogy was not about management rights, but about making unions responsible. In the Hamilton Terminal Operators award, Arthurs dealt with an employer seeking damages against the union for an unlawful work stoppage. The case arose in the midst of a wave of wildcat strikes by workers in response to the suspension of a union steward for allegedly being under the influence while on the job. A union meeting was held over lunch, to which the company acquiesced, but at the meeting a resolution was passed demanding that the official be reinstated forthwith. Union officials sought to avoid an unlawful strike and introduced a subsequent motion to adjourn the meeting and return to work. This motion was defeated, and when the company refused to reinstate the union steward, an unlawful strike commenced despite the union officials’ urging that the men return to work.

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Previous arbitrators, including Laskin, had held they were empowered to order damages against a union to compensate the employer for losses resulting from unlawful work stoppages, but that the union’s liability was contingent on the arbitrator finding that union officials had acted improperly or had failed to endeavour actively to stop the wildcat. Here, union officials had made every reasonable effort to stop the strike. However, for Arthurs, this was not the end of the story because the employees had asserted direct control of the union through their meeting and ordered the strike, even though they lacked the authority to make such an order under the union’s cons­ titution, which conferred this power on the international president. Whatever the legal logic, Arthurs was “ultimately persuaded by indus­trial relations realities. To allow the union to escape liability in this case for conduct formally approved by a substantial majority of bargaining-­unit members, would encourage irresponsible and damaging union action.”30 Ironically, this was precisely the result that courts would have reached through the common law, but it was now reached for industrial pluralist reasons. Employers had a right to industrial peace during the life of the collective agreement, and trade unions had to be made responsible to achieve this result. In sum, Arthurs’s academic writing and his arbitration awards provide us with a clear vision of the industrial pluralism at work in the 1960s. Courts and the common law needed to be kept at bay so the field of industrial relations could develop its autonomous norms in  response to industrial relations realities. Those norms would be shaped, articulated, and inscribed into the regime by experts who were attuned to these realities, but who were also committed to a model of industrial justice that offered employers industrial peace and a disciplined workforce in exchange for sharing some of the material benefits of economic growth and forgoing the exercise of arbitrary authority. Leading pluralists were not greatly troubled by the way industrial realities reflected the unequal power relations that prevailed within the collective bargaining regime. The important point was that, through the institution of collective bargaining, unions had enough countervailing power so that their bargains with employers could be viewed as the legitimate foundations upon which the workplace constitution was built. But it was precisely because industrial pluralists accepted these unequal power relations and the imperative of worker subordination to the exercise of management rights shorn of its excesses, that the differences between the old world of the

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common law and the new world of industrial pluralism were not as great as the pluralists often believed.31 More generally, while industrial pluralists understood that “the industrial community does not exist in a vacuum: it is a state within a state,”32 they did not recognize that it also existed within a particular political economy, let alone that that political economy was far more fragile than they had ever imagined. This lesson was soon brought home with a vengeance. 3 industrial pluralism under neo-liberalism: t h e wo r s t o f t i m e s

We are in times of trouble, profound trouble: the plague years, the time of the New Economy.33

When Harry Arthurs returned to labour law scholarship after his years as York University president, he found a world vastly changed from the one he had occupied as a young professor and arbitrator. The post-war industrial relations system was visibly breaking down as rates of private-sector unionization dropped and collective bargaining increasingly focused around employer demands for contract concessions. Arthurs identified the problem as the New Economy, which he understood to be the product of technological change, globalization, and diminished tolerance for state intervention in the marketplace.34 Although the problem of the colonization of the field of labour law by juridical norms continued to be a concern,35 he now emphasized that “changes in labour law are not autonomous: they derive from changes in our political economy” and that “power relations [are an important] determinant of the indigenous law of the workplace,” albeit not the only one.36 There is not enough space to explore Arthurs’s responses to the new world of labour law, but it is fair to say that he has taken to heart the salience of unequal power relations, and has therefore now become one of the leading pessimists about the possibility of reviving the industrial pluralist project. For example, Arthurs views the effort to constitutionalize labour rights, which seemed to gain some traction in Canada after the Supreme Court of Canada adopted a more expansive theory of freedom of association in the twenty-first century than it had in its earlier decisions, as doomed to failure in a world in which Canada’s neo-liberal economic constitution will continue to result in workers experiencing diminishing collective political and economic

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power.37 He has found that corporate self-regulation has not produced much workplace change, and he has criticized reflexive labour lawyers for failing to come to grips explicitly with the issue of power.38 Finally, Arthurs’s research showed that the construction of a transnational regime of labour law is dominated by global corporations and that global unions, social movements, and monitoring agencies exercise at best a modest moderating influence.39 4 conclusion We had everything before us, we had nothing before us.40

Harry Arthurs’s remarkable career has spanned the best and worst of times for industrial pluralists. In the best of times, he was a prodigy who quickly became one of the field’s leading figures, both as an academic reflecting on industrial pluralism’s theoretical foundations and institutional dynamics, and as an arbitrator, refining the norms and practices of the unionized workplace. Industrial pluralists em­­ braced the possibility that industrial justice could be achieved through the creation of institutional arrangements, which would harness capitalism’s imperative to expand wealth endlessly to a project of providing unionized workers and their families with a rising standard of living and fair treatment at work in exchange for accepting management’s rights to control investment and production and its need for labour peace. Overseen by people who were sympathetic to its goals and who were immersed in its day-to-day realities, industrial pluralism could be managed and adjusted as the situation required. The game would go on as long as the players accepted its rules, and why wouldn’t they? Properly tended, the golden goose would keep laying golden eggs. The future looked bright. But the game did not go on, and Arthurs was quick to understand that the underlying political-economic foundations upon which industrial pluralism had been built, the very foundations that pluralists had ignored in better times, were crumbling. Tinkering with the rules around certification or arbitral doctrine around managerial rights and union responsibilities was not going to address the fundamental problem that, in the new political economy, employers had the upper hand and, as a result, had withdrawn their consent to the regime and the compromises embedded in it.41 A compliant labour force could be obtained through a competitive, globalized labour

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market. For much the same reason, most private-sector employers were less concerned about the threat of labour disruptions. The labour movement had lost the capacity to make co-operation and compromise preferable to confrontation and demands for concessions. Workplace justice was in retreat as employers appropriated for themselves a greater share of the wealth produced by the firm and reasserted their power to organize production to maximize profits. It is a testament to Arthurs’s intelligence and integrity that he did not cling to the industrial pluralist world in which he had been so heavily invested, but instead took up the challenge of rethinking how disempowered groups might contest and resist the economic structures that produce their subordination.42 In so doing, Arthurs appears to embrace a Polanyian-inspired vision of social forces  threatened by unconstrained commodification rising up to produce a second double-­ movement that may be capable of re-embedding capitalism in social and political institutions.43 Perhaps, to this extent, Arthurs retains his ties to the pluralist vision that informed his earliest work, and still believes it is possible, somehow, for a new movement to generate the power needed to create a new set of institutional arrangements that would harness the productive power of capitalism to generate workplace, social, and economic justice. But, arguably, beneath this optimism lurks a Marxist or neo-Polanyian understanding that the pluralist prescription of balance and social embeddedness is bound to fail as long as the economic system is capitalist and organized around the commodification of labour and the relentless pursuit of profit.44 Where Arthurs’s intellectual engagements will ultimately take him remains to be seen, but we are fortunate that the journey continues.

N ot es   1

Leo Panitch and Donald Swartz, From Consent to Coercion: The Assault on Trade Union Freedoms (Aurora, on : Garamond Press, 2003).   2 Annette Bernhardt et al., eds., The Gloves-Off Economy: Workplace Standards at the Bottom of the American Labor Market (Champaign, il: Labor and Employment Relations Association, 2009); Leah Vosko, ed., Precarious Employment: Understanding Labour Market Insecurity in Canada (Montreal, qc, and Kingston, on : McGill-Queen’s University Press, 2005).   3 Peter S. McInnis, Harnessing Confrontation (Toronto: University of Toronto Press, 2002); Judy Fudge and Eric Tucker, Labour before the Law (Toronto: University of Toronto Press, 2001).

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Historical Statistics of Canada, Series E17 (http://www5.statcan.gc.ca/ olc-cel/olc.action?objId=11-516-X&objType=2&lang=en&limit=0, last accessed 24 July 2016). See John Goddard, “Do Labour Laws Matter? The Density Decline and Convergence Theory Revisited,” Industrial Relations 42 (2003): 458, for additional sources and for a discussion of the challenges in constructing time series for these data.   5 Eric Tucker, “Can Worker Voice Strike Back? Law and the Decline and Uncertain Future of Strikes,” in Voices at Work: Continuity and Change in the Common Law World, ed. Alan Bogg and Tonia Novitz (Oxford, u k : Oxford University Press, 2014), 455–73; Christopher Huxley, “The State, Collective Bargaining, and the Shape of Strikes in Canada,” Canadian Journal of Sociology 4 (1979): 223.   6 Philip Girard, Bora Laskin: Bringing Law to Life (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 2005).   7 Harry W. Arthurs, “Tort Liability for Strikes in Canada: Some Pro­blems of Judicial Workmanship,” Canadian Bar Review 38 (1960): 346.   8 Ibid., 393, 402.   9 Re Canadian General Electric (1951) 2 Lab. Arb. Cas. 608; Re Polymer Corp. Ltd. (1958) 10 Lab. Arb. Cas. 31. 10 Harry W. Arthurs, “Comment: Labour Law – Secondary Picketing – Per Se Illegality – Public Policy,” Canadian Bar Review 41 (1963): 573; [1963] 2 O.R. 81. For a detailed case study, see Eric Tucker, “Hersees of Woodstock Ltd. v Goldstein: A Small Town Case Made It Big,” in Work on Trial: Canadian Labour Law Struggles, ed. Judy Fudge and Eric Tucker (Toronto: Irwin Law and the Osgoode Society for Canadian Legal History, 2010), 217–48. 11 Arthurs, “Comment: Labour Law,” 585. 12 Ibid., 585–6. Arthurs’s case comment was picked up by Wilfred List, The Globe and Mail’s labour correspondent, who wrote a piece entitled “Picketing and the Law: Judge vs. Professor” (20 December 1963). In it, he cited a passage from the article in which Arthurs had criticized Aylesworth, J.A.’s judgment for embracing “the notion that individual and group interests must always yield to community interest” which he characterized as “an affirmation of totalitarian philosophy quite inconsistent with constitutional government” (581). At the behest of his dean, Arthurs responded with a letter to the editor in which he criticized List, inter alia, for “focusing only on the most sensational and far-ranging portions of my views” making it appear that “my analysis was without scholarly foundation” (The Globe and Mail, 27 December 1963).

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13 Harry W. Arthurs, “Labour Law – Picketing on Shopping Centres,” Canadian Bar Review 43 (1965): 357. The cases were Zeller’s (Western) Ltd. v Retail Clerks Union, Local 1518, [1962] 36 D.L.R. (2d) 581, and [1963] 42 D.L.R. (2d) 583. 14 Arthurs, “Labour Law – Picketing,” 361. 15 Ibid., 362. 16 Harry W. Arthurs, “The Dependent Contractor: A Study of the Legal Problems of Countervailing Power,” University of Toronto Law Journal 16 (1965): 90. 17 Ibid., 117. 18 S.O. 1975, c. 76, ss. 1(1) and 3(4). 19 Harry W. Arthurs, “Developing Industrial Citizenship: A Challenge for Canada’s Second Century,” Canadian Bar Review 45 (1967): 786. 20 Peter S. McInnis, “‘Hot Head Troubles’: Sixties-Era Wildcat Strikes in Canada,” in Debating Dissent: Canada and the Sixties, ed. Gregory S. Kealey, Lara Campbell, and Dominique Clément (Toronto: University of Toronto Press, 2012), 155–70; Bryan Palmer, Canada’s 1960s (Toronto: University of Toronto Press, 2009), 211–41. 21 Harry W. Arthurs and John Crispo, “Industrial Unrest in Canada: A Diagnosis of Recent Experience,” Relations Industrielles 23 (1968): 237. An earlier version of this paper was given at a conference in 1967 and was summarized and extensively quoted in “Diagnosing Industrial Unrest,” Labour Gazette (October 1967): 624. 22 Vaunclair Purveyors Ltd. v Amalgamated Meat Cutters, Local 633 (Layoff Grievance), [1963] O.L.A.A. No. 2. Arthurs was appointed as arbitrator by the minister of Labour when the parties’ nominees were unable to agree on one. 23 Ibid., para. 18. 24 Russelsteel Ltd. v United Steelworkers of America (Collective Agreement Grievance), [1966] O.L.A.A. No. 4. 25 Peterboro Lock Mfg. Co., [1953] 4 L.A.C. 1499, at 1502. 26 Ibid., para. 5. 27 Re United Steelworkers and Port Arthur Shipbuilding Co., [1966] Carswell Ont 621, para. 7. 28 Port Arthur Shipbuilding Co. v Arthurs et al., [1969] S.C.R. 86, at 89 rev’g. [1967] 2 O.R. 49 sub nom. R. v Arthurs, Exp. Port Arthur Shipbuilding Co., rev’g. [1967] 1 O.R. 272. 29 S.O. 1970, c. 85, s. 12(2). 30 Hamilton Terminal Operators Ltd. v International Longshore and Warehouse Union, Local 1879 (Work Stoppage Grievance), [1966] O.L.A.A. No. 1, para. 17.

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31 This is a point made by the “other” Harry at Osgoode, Harry Glasbeek. For example, see his “Voluntarism, Liberalism and Grievance Arbi­tration: Holy Grail, Romance and Real Life,” in Essays in Labour Relations Law, ed. G. England (Don Mills, on : cch Canada Limited, 1986), 57–102. 32 Arthurs, “Developing Industrial Citizenship,” 786–830, at 787. 33 Harry W. Arthurs, The New Economy and the Demise of Industrial Citizenship (Kingston, on : The Industrial Relations Centre, Queen’s University, 1996), 1. 34 Ibid. Also see his “Labour Law without the State,” University of Toronto Law Journal 46 (1996): 1; and “The New Economy and the New Legality: Industrial Citizenship and the Future of Labour Arbi­tration,” Canadian Labour & Employment Law Journal 7 (1999): 45. 35 A point emphasized in relation to arbitration in Arthurs, The New Economy. 36 Harry W. Arthurs, “Labour Law and the ‘Real’ Constitution,” Cahiers du droit 48 (2007): 43, at 43–5. 37 For example, see his “Labour Law and the ‘Real’ Constitution” and “The Constitutionalization of Employment Relations: Multiple Models, Pernicious Problems,” Social & Legal Studies 19 (2010): 403. 38 Harry W. Arthurs, “Corporate Self-Regulation: Political Economy, State Regulation and Reflexive Labour Law,” in Regulating Labour Law in the Wake of Globalisation, ed. Cynthia Estlund and Brian Bercusson (Oxford, uk: Hart Publishing, 2008), 19–35. 39 For example, Harry W. Arthurs, “Extraterritoriality by Other Means: How Labor Law Sneaks across Borders, Conquers Minds and Controls Workplaces Abroad,” Stanford Law & Policy Review 21 (2010): 527. 40 Charles Dickens, A Tale of Two Cities, 1859. 41 For an insightful analysis of this development, see Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism (New York: Verso Books, 2014). 42 Harry W. Arthurs, “Labor Law as the Law of Economic Subordination and Resistance,” Comparative Labor Law & Policy Journal 34 (2013): 584. 43 Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston, m a: Beacon Press, 1944). 44 Timothy David Clark, “Reclaiming Karl Polanyi, Socialist Intellectual,” Studies in Political Economy 94 (2014): 61.

pa r t i i

Labour Law’s Precarious Infrastructures

5 Defining Labour Standards: Harry Arthurs’s Beau Risque Gilles Trudeau Montreal

1 introduction

In an article published in 1967,1 Harry Arthurs compellingly described how a real industrial citizenship was emerging in Canada from legislation, collective agreements, and shop-floor customs. This citizenship, he wrote, “would protect workers against arbitrary treatment by their employer and against the vicissitudes of the economy, old age and illness.”2 It largely emanated from the collective autonomy of the parties, who developed the terms of this protection themselves, as well as from legislation that recognized workers’ right to organize and established the operating rules of collective bargaining. Labour arbitration was a crucial pillar of this citizenship, providing the parties with “the expert and accessible forum in which the entitlements of industrial citizenship could be enforced.”3 In this context, legislated labour standards, the first of which dated as far back as the early days of the Industrial Revolution in the nineteenth century, had lost much of their relevance. They merely represented a minimum floor beyond which only individual or collective bargaining would allow workers to improve their own lives. Thirty years later, once the golden age of collective bargaining was over, realism, or even pessimism, replaced Harry Arthurs’s optimism, as he expressed in the following words:

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My theory of industrial citizenship is defunct; it has been restructured, downsized and out-sourced: no industrial citizenship; no lions and lambs; no golden age of labour arbitration.4 This devastating observation led him to reconsider the role that legislated labour standards could play in defining the status of employees, as he explained in an article published in 2007.5 Harry Arthurs did not confine himself to a theoretical discussion of what this new role of legislated labour standards could be. In 2004, he accepted the mandate proposed by the Canadian minister of Labour “to conduct a comprehensive review of Part III of the Canada Labour Code … and to make recommendations for legislative changes with a view to modernizing and improving the relevance and effectiveness of federal labour standards.” Such was the Beau Risque6 taken on by Harry Arthurs, which involved concretely defining the content of labour standards that could bolster collective bargaining and ensure decent working and wage conditions while acting as a bastion against the arbitrary and discriminatory treatment of employees. This chapter describes the factors which, in Harry Arthurs’s view, led to the decline of collective bargaining in Canada, and the reasons why recourse to legislated labour standards has become an alternative that should be explored. It also presents an overview of the recommendations made by Harry Arthurs after two years of in-depth analysis as part of the Federal Labour Standards Review, of which he was the commissioner. Lastly, this chapter briefly considers what has transpired since Harry Arthurs took on this Beau Risque nearly ten years ago. 2 t h e r o l e o f l e g i s l at e d l a b o u r s ta n da r d s in the new economy

Central to the idea of industrial citizenship that Harry Arthurs so convincingly promoted in 1967 was the collective-bargaining system implemented through Canadian legislation as of 1944. In fact, from 1945 to the early 1980s, a period characterized as the golden age of  collective bargaining in Canada, the system spread widely, even­tually covering almost 40 per cent of the Canadian workforce.7 However, collective bargaining has declined significantly over the last thirty years, so that today it no longer represents the key vehicle for access to industrial citizenship, as Harry Arthurs advocated. In fact, in a remarkable text published in 1996, Harry Arthurs explained

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how the trends pertaining to what he referred to as the “new economy” made this decline inevitable and irreversible.8 The new economy – which is characterized by the globalization of  the economy, a rapid development of information technology, and the demise of nation-states – has induced a significant transformation and internationalization of production, as well as a greater liberali­zation of trade, conditions for foreign direct investment, monetary flows, and stock-market speculation. It has fostered the development of highly competitive markets, for which national borders have lost much of their traditional importance. It has also led to the ascendancy of multinational firms that, through the increased mobility of production factors, can establish themselves throughout the world, wherever investment conditions are most advantageous to them. Firms have had to change their production and marketing strategies significantly to meet the new competitive conditions and their shareholders’ expectations regarding return on investment. These new strategies include mergers and the reorganization of firms into networks. In addition, firms have refocused on their core missions and subcontracted many of their former activities to specialized producers. The greater flexibility thus acquired has also been enhanced by changes made to work organization, relying less and less on a permanent, full-time workforce and dramatically increasing the number of part-time, temporary, and non-standard jobs. Under globalization and the new economy, nation-states have come under great pressure from “global” competition to develop a regulatory system that is conducive to investment. Thus, it has come to be generally believed that the only acceptable public policy is to promote an open and globalized economy, characterized by lower levels of regulation and taxation. Moreover, international trade treaties and the wto have deprived nation-states of some of their sovereign powers, thus reducing their role accordingly. The new economy has also effected profound changes in the composition of the workforce. Women have joined the labour market in massive numbers, thus challenging traditional values, especially regarding work-family balance. Successive waves of immigration have resulted in a workforce that is increasingly diversified in terms of culture, religion, and politics. The generations of young workers no longer share the same values as their elders regarding work, employment, and career. These changes have brought about a fundamental change in the perception of and attitude towards labour institutions.

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The new economy requires that labour law be considered “after collective bargaining.” As stated by Harry Arthurs, [W]e must explore new ways to provide workers with some measure of industrial justice, for promoting sensible and orderly resolution of workplace conflicts, and especially for ensuring that states, markets and employers are accurately informed about and responsive to the needs and preferences of workers ... [Labour standards legislation is] an alternative or additional vehicle for worker voice.9 According to Arthurs, the expected benefits of increased recourse to legislated labour standards could be greater than the increase in labour costs feared by some observers. Thus, labour standards “could help to initiate a virtuous circle in which workers enjoy improved conditions at work and enhanced control over their daily routines, employers experience improved productivity, and the community and economy benefit as well.”10 However, to this end, the labour standards to be promoted should not only afford better protection to workers but also be concerned with giving workers a means of expressing their views on how such protection can be achieved. 3 t h e c o n t e n t o f l e g i s l at e d l a b o u r s ta n da r d s i n t h e n e w e c o n o m y

Following the deliberations of the Commission for the Review of Federal Labour Standards, Harry Arthurs submitted a report proposing a set of recommendations based upon three groups of principles. The fundamental principle of decency at work underlies all the recommendations. A series of strategic principles help to realize and implement the decency principle. Lastly, several operational principles apply to the instruments (whether legislative or administrative instruments or policies) used to translate the strategic principles into practice. 3.1 A Fundamental Principle: Decency at Work Commissioner Harry Arthurs asserts straightaway that decency at work is the very essence of any legislation on labour standards, and that this pre-eminent principle must guide the development of the latter. If the state intervenes in this domain, it is to ensure that no

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worker “is offered, accepts or works under conditions that Canadians would not regard as ‘decent.’”11 In this sense, this principle echoes the International Labour Organization (i l o ), whose main aim since 1999 has been to promote decent work for all.12 The notion of decent work is still general and reflects how the Canadian population perceives this subject. It requires that fundamental human rights – namely, dignity, physical integrity, and freedom from discrimination – be respected in the work context. It also implies that the wage to which employees are entitled be sufficient for them to avoid poverty. This is why Commissioner Arthurs recommends that the national minimum wage be benchmarked to the lowincome cut-off index.13 Moreover, Commissioner Arthurs emphasizes that the decency principle calls for particular attention to be paid to the factors that generate vulnerability among workers, in particular the scope of labour standards. Thus, in his view, the decency principle is violated when workers are deprived of their status as employees and the protection of legislated labour standards by virtue of their contractual agreements even as they face the same difficulties as other employees. He thus recommends that a new category of “autonomous workers” be defined as including persons who perform services comparable to those provided by employees and under similar conditions, but whose contractual arrangements with the employer distinguish them from “employees.”14 Similarly, the Report proposes that part-time workers receive the same pay as full-time workers with equivalent jobs.15 A similar recommendation is made for temporary workers.16 Also based upon the principle of decency at work, the commissioner recommends maintaining and improving the operation of the recourse against unfair dismissal for any employee who has completed one year or more of continuous service.17 In his view, this recourse is important to protect workers “from the risk of having to put up with working conditions that are not decent for fear of losing their job.”18 Lastly, the principle of decency at work requires that labour standards legislation be implemented and applied rigorously and effectively. The Report formulates several recommendations aimed at putting in place a strategy of application that will allow labour standards to play their role fully.

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3.2 The Strategic Principles The following six strategic principles structure the recommendations made by Commissioner Arthurs with regard to the application of the fundamental principle of decency at work. i T a k ing t h e Ma r k e t E c ono my i n to Acco u n t Labour standards should be designed in such a way that employers, while respecting the principle of decency at work, can act effectively in a global economy. The latter must, in particular, enjoy sufficient flexibility “to meet time-sensitive market demands and to restructure or redeploy their workforces in the face of changing market conditions.”19 Thus, it can be noted that the Report does not propose any measure aimed at restricting the use of non-standard forms of work, such as temporary or part-time work. Moreover, no change has been envisaged to increase the procedures for individual or group termination of employment already provided for in Part III of the Canada Labour Code. Current regulations on group terminations should, however, be part of a broader strategy of “flexicurity” aimed at enhancing the employability and financial security of laid-off workers. Flexibility in workforce management, moreover, requires that rapid, effective, and fair mechanisms for adjusting workplace practices be implemented at both the sectoral level and the individual firm level. Thus, the Report recommends various procedures for adapting and changing standards relating to hours of work in order to take account of employers’ production requirements and their employees’ preferences. We will return to this below. Developing human capital is another way for labour standards to enhance the competitiveness of the economy. Thus, the Report emphasizes the crucial importance of workforce training and skills development. It calls upon the federal government to develop “a comprehensive strategy for funding, designing and ensuring the delivery of training and educational programs to support the ability of workers and enterprises in the federal domain to participate fully and effectively in today’s knowledge-based economy.”20 Beyond the strict application of minimum labour standards, Com­ missioner Arthurs recognizes that the key to productivity and high job performance lies in how well the workforce is treated. It is particularly important to ensure that trust and collaboration prevail in workplaces. According to Arthurs, a way to achieve this is “to collect information

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on ‘best practices’ – practices that work – and to disseminate that information to others who can imitate them or adapt them to suit their own particular circumstances.”21 He therefore recommends that the federal government “establish a unit whose mandate is to investigate the potential of high performance workplace systems and other ‘best practices’, to disseminate information about them, to promote their adoption, to evaluate their outcomes, and to ensure that in their design and operation they are consistent with other important public policies affecting workplace relations.”22 i i F le xic ur it y Although, as explained above, the Report recognizes the need to provide employers with the flexibility needed to conduct their business effectively while managing their workforce, this flexibility must be closely linked with greater security for the workers affected. Thus, both employers and the state will have to contribute to designing, putting in place, and funding programmes that enhance the employability and occupational mobility of employees, while protecting the income of the latter during the transition periods. Flexicurity cannot be implemented directly based upon labour-standards legislation, since the latter addresses working conditions, whereas flexicurity seeks to promote access to new jobs. Rather, flexicurity must be implemented through broader labour market policies and measures aimed at strengthening social citizenship. Flexicurity represents, first and foremost, “an attempt to coordinate public policies and private initiatives to produce optimal economic outcomes for workers, employers and the entire community.”23 Harry Arthurs thus proposes that the federal government initiate a dialogue with employers, trade unions, and the provincial governments to explore the principle of flexicurity.24 i ii A L ev e l P l ay i ng F i e l d The rules relating to labour standards must be the same for all players in similar situations. Otherwise, some employers would be given an undue advantage and the effectiveness of labour standards would be undermined. Respect for this principle is conditional on a consistent and effective application of labour standards. Commissioner Arthurs recognizes that labour-standards compliance is seriously deficient and, in fact, represented the greatest issue facing the Commission. He thus proposes a strategy that mainly involves informing the social actors and educating them about the importance, role, and content of labour standards. Several data

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have, in fact, shown that a lack of awareness among employers and employees and their representatives largely accounts for the mediocre effectiveness of these standards. However, to make uncooperative employers change their behaviour, the commissioner proposes not only more severe sanctions, but also an effective scrutiny system whereby any action taken would be based upon an appropriate information and data bank. i v T he Wor k p l ac e B a r ga i n In Harry Arthurs’s view, legislated labour standards should respect the right of employers and workers (or their collective represen­tatives) to negotiate the terms of the employment relationship, provided that the negotiations are authentic and that the resulting agreement does not violate the principle of decency at work, or the law. This basic premise of our political economy echoes the freedom of choice and the contractual freedom recognized under general law. It is also a reminder of the collective autonomy recognized and regulated by the legal system and applicable to collective labour relations. However, Harry Arthurs underlines that, today, it is employers who generally set the working conditions and employees have no choice but to take them or leave.25 He therefore expressly subjects contractual freedom to the principle of decency at work. Following this principle, the Report recommends against imposing compliance with specific formalities, such as the signing of a written contract at the inception of the employment relationship. However, it proposes that employers be required to provide employees with a written notice, at the time of hiring, setting out their working conditions. While this notice would not constitute a contract and would not be enforceable as such, it would serve as the prima facie evidence of the terms of the agreement reached between the parties.26 Moreover, based upon this principle, the commissioner explains that it is possible for the parties to agree to a contractual arrangement other than an employment contract. This could be justified by the need of a greater degree of worker autonomy and risk-taking than is usually involved in employment. However, while these arrangements must remain possible, they may require special regulations. v Inc l usio n a nd I nt e gr at i o n This principle emphasizes the connection between and complementarity of legislated labour standards and human rights. Labour standards legislation should promote human rights by

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helping to create workplaces in which workers enjoy the ­self-confidence, security and resources they need to claim their human rights; by ensuring that substantive labour ­standards ­conform to the letter and spirit of human rights ­legislation; and by reinforcing the administration of human rights laws.27 Harry Arthurs highlights the fact that legislated labour standards help to advance the cause of fundamental rights at work by promoting the principle of decency at work and fostering balance between workers’ working lives and their personal, civic, and social responsibilities. v i R es pe c t f or I nt e r nat i ona l Obl i g at i o n s Canada is party to a number of international conventions and principles that establish global norms for labour standards legislation. Commissioner Arthurs points out the requirement that domestic law be in compliance with them. Deriving from various sources, they represent the embodiment in international law of the principle of decency at work and the principle of inclusion and integration mentioned above. For national legislation, compliance with these international conventions requires that Canadian labour law meet the requirements of these two principles. 3.3 The Operational Principles Five operational principles complement the strategic principles, and refer more to the legislative, non-legislative, and administrative instruments that put the latter into practice. i Th e E f f e c t i v e a nd E f f i c i e nt U se of Pu bl ic R e sourc e s Through this principle, the commissioner deals with several aspects of the design and application of legislated labour standards. He pragmatically recommends avoiding the duplicating of policy-making, administration, and enforcement functions. These functions should be assigned to the ministry with the greatest expertise in the area. Thus, he refuses to recommend a common application of human rights regulations, which come under the Canadian Human Rights Act,28 and those pertaining to labour standards, as advocated in some briefs presented to the Commission.

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This principle also requires that labour standards legislation “be internally coherent and consistent with other federal laws, policies and programmes that promote the well-being of workers and their families in other domains.”29 This means, for example, that federal labour standards should be designed in such a way as to enable workers to have access to special employment-insurance benefits granted for various types of long-term leave. i i H igh L e v e l s o f C o mp l i a nce Commissioner Harry Arthurs specifically stresses the importance of ensuring compliance with legislated labour standards. Thus, it is necessary to adopt a proactive compliance strategy, based, first and foremost, upon information, education, and persuasion. This strategy must nevertheless also include effective remedies and appropriate sanctions when measures to encourage compliance are ineffective. i ii R e gul at e d F l e x i b i l i t y This operational principle provides a telling illustration of Com­ missioner Arthurs’s capacity for practical compromise and innovative  solutions when addressing pressing labour-market problems. It is  based upon the observation that the complexity and diversity of economic activities conducted by employers, as well as the flexibility sought by them and their employees, make it impossible to apply legislated labour standards rigidly and uniformly. Figuratively speaking, the one-size-fits-all approach can no longer prevail. Thus, adjustments not only in terms of how labour standards are applied, but also in their content, must be considered by sector or individual firm. The Report thus recommends adopting procedures to allow for adjustments to be made to standards related to hours of work. Some of these procedures will help to define the category of autonomous workers that the Report suggests creating, and the benefits to which these workers could be entitled.30 All these procedures should be transparent and “[should] take account of the views of workers and employers and [be] subject to regulatory oversight by Labour Program officials.”31 The Report recommends that the substantive standards related to hours of work not be changed – i.e., a standard eight-hour workday, a standard forty-hour workweek, and a maximum workweek of forty-eight hours.32 However, the commissioner suggests that exemptions can be made provided that they are specified or approved in a process undertaken at the sectoral or workplace level. It should be

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noted that Harry Arthurs views legislated labour standards as “an alternative or additional vehicle for worker voice.”33 It is therefore relevant to examine closely a sample of the mechanisms proposed in this respect: namely, those that define the bargaining procedures at the firm level. Indeed, Harry Arthurs took a chance – a risk, some would say – in recommending that a particular employer be allowed to come to an understanding with its employees on possibly making some legal labour standards more flexible, even when there is no union representation. This process would apply to the standards on hours of work, rules on time off in lieu of overtime pay, notice of shift changes, timing of rest periods, rules on the fractioning of vacations, and other similar matters. The commissioner subjects these arrangements to strict conditions to avoid abuse of trust and protect the general interest of the public. Thus, this is not about setting aside or disregarding the legislated standards, but rather about adapting them so that they better respond to the needs of the parties. The procedures for adjusting the standards must be informed, participatory, transparent, and exempt from any constraint, false representation, or fraud. Lastly, these procedures must be subject to a mechanism for regulatory monitoring in order to guarantee that the law is respected, at both the procedural and substantive levels.34 When an employer decides to hold consultations in a non-unionized workplace, he or she must create a consultative committee representative of all employees affected by the issue to be debated. Various methods of selecting the committee members are envisaged, but in no case can the employer choose them him / herself. If the workplace has fewer than twenty employees, the employer can decide to hold the consultation through meetings open to all employees. The law must protect the employees participating in the consultation against any form of employer retaliation. The result of the resolutions must be submitted in the form of proposals to be decided by a secret ballot vote of the employees affected. When a proposal is accepted by a majority of voters, a notice of approval will be filed with the Ministry of Labour. These adjustments to legislated labour standards can also take place in unionized workplaces. The consultation process must then meet the requirements of the legislation applicable to collective bargaining.35 Harry Arthurs explicitly rejects the case wherein an employer and an employee can agree on a particular arrangement concerning hours

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of work or any other matter subject to legislated labour standards. Although such arrangements are not without some appeal, they involve significant risks that the employee’s vulnerability may vitiate his or her consent.36 Commissioner Arthurs was not ready to make such a compromise. i v C l a rit y As a result of the Commission’s deliberations, Harry Arthurs became convinced that poor understanding and wrong interpretations largely account for problems in applying legislated labour standards. He therefore recommends that they should “be clearly stated, and workers and employers should have easy access to accurate and understandable information concerning their rights and responsibilities.”37 v C irc umsp e c t i on This last principle implies that the legislation must be carefully developed and implemented while taking into account its consequences on the social actors. However, Commissioner Arthurs stresses that this principle should not be applied to the detriment of the fundamental principle of decency at work. 4 conclusion

What, then, is the result of Harry Arthurs’s Beau Risque when he accepted the mandate entrusted to him by the federal minister of Labour in October 2004? What emerged was an acute, original, and detailed presentation of a comprehensive system of legislated labour standards that is applicable to an advanced economy in the twenty-first century. These labour standards respond to the challenges of the new economy and provide a concrete and pragmatic overview of what labour law “after labour” might be. The originality of Harry Arthurs’s contribution to the development of legislated labour standards lies in his underlying theorization. This theory is based upon an ideal as regards the primary role of labour standards, which is to protect the most vulnerable workers against the exploitation to which they may be subject, perhaps even more so under the new economy. This theory is predicated on the same basic ingredients of the concept of industrial citizenship that Harry Arthurs had formulated

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forty years before. This should come as no surprise. Despite the corrosive effects of the new economy on industrial citizenship, he has always maintained that industrial citizenship was a good, plausible, and useful idea, at least at the time!38 More fundamentally, however, Harry Arthurs’s proposals on legislated labour standards demonstrate how relevant the concept of industrial citizenship still remains for justice and worker participation in the workplace and as a prerequisite for broader participation in society. The labour-standards regime that Harry Arthurs proposed actually consists of an “array of employment-related rights and privileges, substantive and procedural … which ultimately give [Canadian workers] a right to economic security.”39 These rights and privileges emanate from principles, the first of which is decency at work, which prevails over all the other principles and conditions them. They encompass basic human rights, freedom from discrimination, and a decent standard of living. Maintaining a recourse against unjust dismissal for any employee with one year or more of continuous service is but one example. Furthermore, these rights and privileges are attached to a status that no one can be deprived of by way of contractual arrangements. Harry Arthurs’s view of legislated labour standards is also pragmatic and nuanced, since it takes into account the interests of all the parties to the employment relationship, in particular those of employers. Thus, labour standards must be open to the flexibility sought by employers in managing their firm and deploying their workforce. They must also be effective and applicable in the most diverse workplaces. This is why Harry Arthurs attaches a great deal of importance to the principles that should inform those standards’ implementation. Special attention is also given to the most vulnerable workers, especially those in non-standard employment relationships or in small- or medium-sized enterprises. From this perspective, the proposal to establish a “benefits bank” that would be attached to the worker, rather than to a specific job, and through which employment-­ related benefits coverage could be purchased by workers or by their employers, appears particularly innovative and well-suited to a changing labour market.40 Arthurs’s proposals on legislated labour standards also generate hope insofar as they aim to give workers a means of expressing their concerns and aspirations despite the current vicissitudes of collective bargaining. They also aim to enable workers to pursue

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these aspirations more effectively and to achieve work-life balance. Harry Arthurs had seen the same virtues in the concept of industrial citizenship. Although Harry Arthurs’s compelling proposals on legislated labour standards certainly held up his end of the bargain in this Beau Risque, the same cannot be said about the impact they have had in terms of immediate changes in labour policies, at least at the Canadian federal level. The Report was submitted to the government, where a different political party was in power from the one that had entrusted him with the mandate to conduct the Federal Labour Standards Review. This government, which was still in power at the time of this writing nearly ten years later, is more on the right of the political spectrum than the previous government, and has not proposed any legislative measure to enact the proposals made by Harry Arthurs. This is, perhaps, hardly surprising – a reality acknowledged by the author of the Report himself: “[Legislated standards] depend crucially on the willingness of elected politicians to enact them.”41 Harry Arthurs conjures up an optimistic scenario in which the legislator would be motivated to reform the legislated labour standards so as to adapt them to the new economy. This scenario could become reality if, on the one hand, employers and government came to realize that decent labour standards can improve economic performance, and, on the other, workers and the electorate were to show that they have had enough of difficult and, at times, even degrading working conditions.42 However, this scenario is unlikely to become a reality any time soon. As Harry Arthurs recently wrote: “[T]here will come a moment when we have all had enough of unstable markets, lopsided power relations, widespread unfairness and declining living standards.”43 Perhaps this moment will come in only ten or twenty years’ time, but it will definitely come. When it does, Harry Arthurs’s Report, called Fairness at Work: Federal Labour Standards for the 21st Century, will be seen as the visionary document that it is. No te s   1 Harry W. Arthurs, “Developing Industrial Citizenship: A Challenge for Canada’s Second Century,” Canadian Bar Review 45 (1967): 786.   2 Harry W. Arthurs, “The New Economy and the New Legality: Industrial Citizenship and the Future of Labour Arbitration,” Canadian Labour & Employment Law Journal 7 (1999): 45, at 46.

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 3 Ibid.   4 Ibid., 47.   5 Harry W. Arthurs, “Reconciling Differences Differently: Reflections on Labour Law and Worker Voice after Collective Bargaining,” Comparative Labor Law and Policy Journal 28 (2006–07): 155.   6 According to Wikipedia, Le Beau Risque refers to “a political catch phrase describing the ‘risk’ the Parti Québécois … took in asking Que­becers to ­support federal Progressive Conservatives … under Brian Mulroney and accept an amended version of the Constitution Act, 1982, which the péquist Quebec government under René Lévesque had previously refused to sign. Mulroney’s Tories promised Quebec the opportunity to fully enter into the Constitution ‘with honour and dignity’ and have its distinctiveness recognized in the document.” For an analysis of the political meaning of the Beau Risque, see Gérard Boismenu, “Le Québec et la centralisation politique au Canada: le ‘beau risque’ du Canada Bill,” Cahiers de recherche socio­logique 3 (1985): 119.   7 Pradeep Kumar, From Uniformity to Divergence: Industrial Relations in Canada and the United States (Kingston, on : irc Press, 1993), 12–13.   8 Harry W. Arthurs, “Labour Law without the State,” University of Toronto Law Journal 46 (1996): 1.   9 Arthurs, “Reconciling Differences Differently,” 156. 10 Ibid., 163. 11 Federal Labour Standards Review, Fairness at Work – Federal Labour Standards for the 21st Century (Gatineau, qc : Human Resources and Skill Development Canada, Catalog number LT-182-10-06 E , 2006), 47. 12 The concept of “decent work” was first introduced by the former directorgeneral of the i lo, Juan Somavía, in his report to the 87th session of the International Labour Conference in 1999. The report is available online at the i lo website: http://www.ilo.org, last accessed 24 July 2016. 13 Federal Review, Fairness at Work, Recommendation 10.14, at 249. 14 Ibid., Recommendation 4.2, at 64. 15 Ibid., Recommendation 10.6, at 238. 16 Ibid., Recommendation 10.5, at 237. 17 Ibid., Recommendations 8.6 to 8.10, at 186–7. This recourse already exists in Part III of the Canada Labour Code, s. 240 et seq. 18 Federal Review, Fairness at Work, at 50. 19 Ibid., at 48. 20 Ibid., Recommendation 11.3, at 259. 21 Ibid., at 264. 22 Ibid., Recommendation 11.8, at 266. 23 Ibid., at 256.

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24 Ibid., Recommendation 11.1, at 256. 25 Ibid., at 50. 26 Ibid., Recommendations 5.1 to 5.5, at 81–3. 27 Ibid., at 51. 28 R.S.C. (1985), c. H-6. 29 Federal Review, Fairness at Work, 53. 30 Ibid., 53, and the accompanying text. 31 Federal Review, Fairness at Work, 54. 32 These standards are currently under s. 169 and s. 171 of the Canada Labour Code. 33 See Arthurs, “Reconciling Differences Differently,” and the accompanying text. 34 Federal Review, Fairness at Work, at 130. 35 Ibid., Recommendations 7.17 to 7.30, at 130–4. 36 Ibid., at 135–6. 37 Ibid., at 54. 38 Harry W. Arthurs, “The New Economy and the Demise of Industrial Citizenship,” Don Wood Lecture 1996 (Kingston, on: Industrial Relations Centre, Queen’s University, 1997), 3, http://irc.queensu.ca/sites/default/ files/articles/dwls-1996-harry-arthurs-the-new-economy-and-the-demise-ofindustrial-citizenship.pdf, last accessed 24 July 2016. 39 Ibid., at 2. 40 Federal Review, Fairness at Work, Recommendation 10.7, at 241. 41 Arthurs, “Reconciling Differences Differently,” 163. 42 Ibid., 164–6. 43 Harry W. Arthurs, “From Theory and Research to Policy and Practice in Work and Employment – And Beyond?” Relations industrielles / Industrial Relations 69 (2014): 423, at 433.

6 Formality and Informality in the Law of Work Kerry Rittich Faculty of Law, Women and Gender Studies Institute, and School of Public Policy and Governance, University of Toronto

1 introduction

[T]hat paradigm of employment which underpinned much postwar labor legislation in advanced economies became increasingly anachronistic … No longer, therefore, could public policy platforms, legal entitlements or union strategies be usefully constructed on the old paradigm. True, the nature of the new paradigm is even now not yet clear ... Which vision of social justice, whose aspirations, whose interests should labor scholarship be concerned to protect? We know only that the old paradigm is likely gone forever, not what will take its place.1 If the emerging paradigm of work remains shrouded in mist and still hidden from view, one thing seems reasonably certain: informal work is sure to form a constituent part of this paradigm, making its mark on labour law at the same time. 2 lo c at i n g i n f o r m a l wo r k w i t h i n l a b o u r l aw

Informality at work might be described as the new frontier of labour law. Enormous numbers of workers around the world labour in conditions of informality,2 and anyone who attempts to grapple with the  field at the global or transnational level is now compelled to

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recognize the significance, both normative and practical, of informality to the project and problems of workplace governance. Informal markets are, for many workers, not simply the normal site of work; informality is a condition that is associated with economic disadvantage and insecurity at work. Relative to work in the formal sector, work in the informal sector remains, in general, characterized by poor working conditions, low pay, economic insecurity, and limited options for mobility and advancement. Informality, moreover, often overlaps significantly with the conditions of social exclusion and political disadvantage. Stated this way, informality would seem to lie at the very centre of labour law’s historical concerns. Yet the current attention to informality within the field of labour law itself represents something of a change. For labour law has its origins in the industrialized world and it is the forms of work that consolidated and prevailed there during the twentieth century that provided the paradigm for the field, even if this paradigm is now in disarray. Informality, by contrast, has ­historically been associated with the labour markets of the Global South and, in contra-distinction to work in the North, framed primarily as an aspect of development. Some of the earliest analyses of what we now call informal work can be found within discussions of colonial governance practices. For example, Lord Lugard, the wellknown British imperial administrator, located the management of the native labour force as an issue to be addressed within the “dual mandate” to promote commerce and civilization.3 This history casts a long shadow: rather than being a matter that demands focused attention on the conditions of work or the powers and disabilities of workers, the idea that informality is something to be addressed in the course of advancing social and economic modernization retains immense appeal within influential international institutions and constituencies.4 Conceptualized primarily as a problem of development, informality has occupied a distinctly marginal – we might say under-­developed – place within the field of labour and employment law. To the extent that the problems of informality do surface expressly as issues of work, the longstanding view has been that the primary task is legal formalization and the “inclusion” of informal workers, by extending labour standards and other rights at work to classes of workers now outside them.5

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3 r e o r g a n i z i n g t h e r e l at i o n s h i p b e t w e e n f o r m a l a n d i n f o r m a l wo r k

Both conceptual and empirical shifts, however, are disturbing the traditionally bifurcated treatment of formal and informal labour markets and bringing informality more centrally into discussions about work. And at the centre of these conceptual shifts are discussions of law’s relation to informality: as the i l o has noted, “informality is principally a governance issue.”6 First, new claims are being advanced on the international plane about law’s capacity to remedy the ills associated with informal work and informal markets. One is that the rule of law can be used to empower poor and disenfranchised informal workers;7 another is that informality itself is a result of badly designed legal rules and regulations.8 Indeed, the formalization of markets has been embraced across the transnational policy elite as a mechanism with multiple virtues. Yet despite the claim that formalization simultaneously advances growth, alleviates poverty, and promotes equality and empow­ erment,9 what formalization might mean in terms of the transformation of law and legal institutions remains surprisingly open. And displaced from these narratives are crucial questions around, for example, how formalization might affect the capacity of workers to associate and act collectively, or control or influence the terms under which they work. Second, informality’s putative relation to development has been upended, and along with it, so has the association of informality with the labour markets of the Global South. Contrary to previous assumptions, informality no longer appears destined to disappear in tandem with economic development – and it may well increase. New, or newly expanded, informal labour markets are a routine feature of urban landscapes across the Global South, and increases in informal employment are, by now, a quite foreseeable outcome of property reforms, trade liberalization, changes in rural land use, domestic and transnational migration, and other policy reforms and transformations related to globalization and enhanced market integration. But informality has become an entrenched, even growing, phenomenon in the labour markets of post-industrial economies too; there as well, it often expands in times of crisis. Since the financial crises of 2008, many more people in the periphery of Europe have found themselves

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working under conditions and in contexts that labour law has traditionally left untouched, as they engage in informal economic arrangements, subsistence activity, and barter in order to survive. Third, and relatedly, labour law’s unique capacity to respond to problems at work is in question in industrialized as well as in developed states. Precisely because informality has been imagined as a dimension of underdevelopment, it has long been observed that macroeconomic governance, rather than labour law, tends to matter most to informal workers.10 But the financial and economic upheavals of the last several decades have revealed the broader significance of macroeconomic policy-making to workers in a wide range of regions, locales, and circumstances: in times of crisis, labour law can be orthogonal, if not irrelevant, to the pressing issues that workers face, while decisions about fiscal and monetary policy effectively determine their fate.11 Yet even as it has become apparent that geography is an increasingly poor basis upon which to differentiate either workers or labour markets, the association of informality with the South and formality with the advanced labour markets of the North remains entrenched. This distinction creates a raft of barriers: to conceptualizing alternative futures at work; to engaging in policy analyses and institutional design to aid both workers and others involved in labour markets; and, ultimately, to pursuing legal and political transformation in the most informed way possible. For workers within formal markets, a preoccupation with the discipline and possibilities of labour law not only limits the conceptual and regulatory tools available to address problems of work; it can also make it extraordinarily difficult to locate where the action is when it comes to the relevant or operative law of work. For one, policy and regulatory shifts that seem remote from both work-a-day lives and the concerns of labour law may generate cataclysmic transformations on the ground. For another, changes in norms and practices at work are as likely now to come from the private as from the public sphere. Is there a way to put the diverse situations of workers together, if not to reconcile them, then to contemplate them within a common legal frame and make them legible as part of a shared universe of normative and political concerns? One intuition is that, rather than informality being a marginal question, an examination thereof may provide a useful lens on the nature and challenges of regulating contemporary work in general.

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Informal workers share more with formal workers in terms of characteristic problems and predicaments than we typically acknowledge. But rather than merely seeking to “include” informal workers and address their problems within labour law, we might reverse the lens and take the condition of informality as a vantage point from which to grapple with the broader set of legal challenges surrounding work, precarious work in particular. At the same time, we can use the practical and theoretical insights garnered within labour law to shed light on claims that formalization per se will necessarily address the problems of informal workers. Before we do this, however, we need to come to grips with some of the conceptual attachments that surround informality: namely, the idea that informality is something and that it is something fundamentally different from formal work. In the spirit of advancing the search for the new paradigm, what follows is a short ground-clearing exercise designed to disturb, even refuse, the bases upon which we typical­ly position formal and informal workers within different conceptual and policy categories. Think of this as a provocation to thought, an indication of possible directions of inquiry, rather than an effort to work through the implications for the field of labour law. 4 i n f o r m a l i t y a n d p r e c a r i o u s wo r k

Informality has become a heavily normative rather than merely descriptive term: it typically serves as a proxy for forms and conditions of work that we think of as warranting change or improvement. At this point, to speak of informality is somehow already to invite intervention of one form or another. The term might refer to work at the bottom of value and supply chains, to domestic work, to agricultural or other forms of subsistence work, or to work performed within grey or illegal markets. Informality might also refer to work that has become worse, in terms of working conditions and economic rewards, due to changes in the legal framework of the labour market, the capacity of the broader economy to support or generate jobs, the manner in which production and service delivery is organized (think of the move from vertically integrated to networked production), or some combination of the above events. Yet rather than being unique, many of these features and processes are now directly associated with formal work as well. There is a huge, and growing, class of workers in the industrialized world with

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marginal status at, and marginal attachment to, work.12 As is the case with informal workers, the minimal income and benefits such workers typically derive from participating in the labour market arise from a combination of structural and socio-political factors, including insufficient demand for labour, lack of “capital” (human and social), labour market stratification, and outright discrimination on ascriptive grounds. The poor bargaining power these workers experience as a result is then exacerbated by inadequacies of the legal framework in which they operate. So, if informality is a convenient mode of pointing to problems at work, informality also overlaps substantially with what is often identified as precarious work: work in which workers lack standard protections and workplace entitlements, voice or control over the conditions of work, and economic mobility and security.13 Informality is sometimes described as the product of “deregulation” or the rise of subcontracting; indeed, processes of deregulation may themselves be called “informalization” or “de-formalization.”14 But so, very often, is precarious work. Using informality either to identify or to diagnose problems at work turns out to be difficult as well. Informality is a heterogeneous socio-legal condition encompassing immensely varied forms of work, embedded in equally varied formal and informal institutional settings, and resulting from myriad social, political, and economic processes. There are no consistent markers or measures of informality: it has been identified by enterprise, by job, and by activity.15 Nor is there any sharp dichotomy between the formal and informal sectors. Instead, they are better mapped as points on a continuum,16 or even as fluid and intermingled spheres. Formality is also a highly uneven condition. Workers may be part of the formal economy for one purpose, but informal for others.17 Or they may be informal at  one moment and formal at another.18 One result, as Ravi Kanbur has observed, is that informality “has the dubious distinction of combining maximum policy importance and political salience with minimal conceptual clarity and coherence in the analytical literature.”19 Rather than simply noting a complicating feature, Kanbur’s observation reveals an unavoidable conundrum at the heart of debates about informal markets. There is no way to make all the different work situations that travel under the name “informal” commensurable in any fundamental sense; nor is there any way to distinguish them usefully from the many types of formal work. The attempt to do so, moreover, risks conflating – and confusing – distinct issues and

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concerns that may be better identified and examined in themselves. It also separates some forms of work from other labour and economic processes to which they are deeply connected. 5 i n f o r m a l i t y a s a l e g a l c at e g o r y

This conceptual confusion is mirrored in the legal analysis of informality; far from providing useful analytic traction, as a legal category, informality turns out to be distracting, even confusing. The problems of informality are often attributed to the absence of legal rules, sometimes the rule of law tout court.20 Underpinning these claims is the idea that the “informal” is a zone in which state authority is either absent or imperfect in its reach. Laws do not apply or, if they apply in theory, are not actually enforced. Or the reach of law is uneven: some laws apply while others do not.21 Yet, rather than being exceptional, the uneven reach of rules and regulations and the highly variable enforcement of the law are all standard-issue problems of work in the formal sector too. The fact that informal work is untouched by a particular law tells us little or nothing about its general relation to law in any event. Like formal markets, informal markets are crosscut with myriad freedoms, permissions, prohibitions, and constraints which both endow the actors within them with powers and immunities, and subject them to duties and obligations.22 Some can be located in customary norms or social practices, others owe their force to formal law, and still others are effectively an indissoluble amalgam of both. The inescapable conclusion is that, far from being unregulated, informal work is regulated, and it may be regulated as much by formal law as by informal norms. The attribution of informality to “deregulation” raises similar problems. Whatever the truth of the observation that it commonly results in a deterioration of the legal protections for workers and / or an increase in the number of workers outside the protective reach of labour and employment law,23 it is unsafe, even mistaken, to imagine that workers lie beyond the law as a result. For one, the potential for direct, formal regulation of informal work is, in theory, omnipresent. Numerous laws are destined to touch on informal markets in any event, and these may be as important – or more so – as those that are missing. For example, informal workers typically remain subject to police harassment and the threat of prosecution under the criminal

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law even where they do not receive the benefit of labour and employment law protections.24 Municipal zoning laws – or their lack – may affect where informal workers set up shop and ply their trade. Housing regulations, landlord / tenant laws, land titling, and property rights may render them vulnerable to eviction or otherwise place them at risk of losing access to resources and opportunities crucial to their economic well-being.25 And, as these possibilities indicate, informal workers’ decisions and activities will inevitably be structured by the legal entitlements of those with whom they transact and interact. In short, far from being absent, the imprint of the law can be detected all over informal markets. More importantly, the exclusion or “exceptionalizing” of informal workers from particular classes of rules, a condition often identified with informality, may itself be the consequence of some political, bureaucratic, or administrative decision. Why, however, should we think of workers such as domestic and agricultural workers who lack access to collective bargaining or other rights at work as “outside” the law, when such disabilities are embedded in – and may be directly a product of – legal rules themselves? This brings us to the second observation. Formalization is conceptually and functionally open. Different actors and institutions mean different things by formalization, and they expect to advance different – and sometimes incompatible – objectives from formalization. Entrepreneurs may want to eliminate the economic advantages enjoyed by competitors who profit by avoiding regulatory fees, licences, and income and payroll taxes; they may also seek to capture a greater share of the profits through entitlements and regulations that deliver them low costs and high levels of control over their workforces. States may pursue formalization to expand their tax base, especially where the growing capacity of capital to escape taxation makes other avenues to raise revenue seem unpromising. Workers and their advocates, for their part, typically see formalization as a means of gaining higher workplace standards as well as a recognition of their associations and a measure of voice at work. Formalization itself, however, tells us nothing about which of these objectives will prevail. Nor does it dispose of the crucial matter of how any new legal powers and entitlements that are formalized will be designed and institutionalized. Instead, it merely poses the central question: What powers, for whom, and to what ends?

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Third, it seems unavoidably clear that formalization may bring disadvantages as well as benefits to workers. Here, it turns out that the history of labour and employment law is instructive. Although formalization is now routinely advanced as the route to decent or “better” work, such claims should induce caution, if not immediately create flashing lights, for anyone in the field of labour. The (more) visible presence of law and the state and the recognition of formal rights have never tracked improvements in working conditions or bargaining power for workers in any simple or unidirectional way.26 Even in industrialized states, the rule of law and the constitutionalization of workers’ rights have proven to be decidedly mixed blessings, sometimes entailing disabilities for workers that are as significant as any advantages.27 It has long been recognized that rights that hold transformative promise may become, through interpretive strictures, devices either to uphold the status quo or to entrench further the rights of capital.28 Formalization under norms of greater labour market flexibility – a distinct possibility, given conventional political and technocratic wisdom about the nature of good labour market governance – poses still further risks; for some workers, the outcome may even be a net loss. For example, prior informal understandings that worked to workers’ advantage, including flexibility to manage competing household obligations,29 may be disrupted. New private law rights may become legally entrenched that place significant constraints on the pursuit of traditional activities and / or impose additional economic risks and costs on workers. Regulation and bureaucratic oversight may provide new opportunities for both public and private actors to exact rents or subject workers to obligations and constraints, with little in the way of countervailing power or benefits. The possibilities – in both directions – are legion. Greater economic security and enhanced voice and control over the terms and conditions of work are, then, a highly contingent, rather than an inevitable, outcome of formalization. What is at stake within debates over the regulation of informal markets is typically a struggle over the content and purposes of the law rather than simply its presence; whether workers are imagined as formal or informal, what is typically at issue are burdens and benefits. At the same time, work now designated “informal” can be improved by policy or regulatory changes that either directly target particular groups or extend to excluded workers some of the benefits available to labour-market “insiders.” Domestic workers, for example, may

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gain access to social protection, even vacation pay and limits on working time, through legislative interventions.30 Low-income households whose members are engaged in subsistence or other forms of informal work may have access to subsidies, such as Brazil’s Bolsa Família, provided by the state.31 Workers in subcontracting situations who are effectively without legal remedies may gain new options for redress in the case of contract disputes over non-payment of wages or money owed them for services rendered, as a result of legislation that enables collective bargaining or extends liability for the debts of subcontractors to those higher up in the production chain.32 Given the many avenues to improve their situation through law and policy, for what reasons does it make sense either to think of informal workers as outside the law and beyond the reach of the state, or to differentiate them from other workers? 6 t h e e n d u r i n g p u z z l e : t h e p l ac e o f l aw i n   wo r k

Buried within these questions is a series of nested conceptual problems of immense significance to the regulation of work in all its forms. Although they cannot be explored in any depth or detail here, it is worth at least noting their presence. There is now a wide range of theories – normative, sociological, economic, and behavioural – purporting to explain law’s relation to informality, both actual and proper; from these theories flow, inevitably, different assessments of the purposes, effects, and wisdom of regulatory interventions designed to remedy informality. Although they differ in many other respects, virtually all such theories proceed on the assumption that it makes sense to think of law and informal markets as functionally and analytically distinct. However, this has long been a suspect starting-point.33 Law is endogenous rather than external to informal markets, as it is to other markets. All references to informal markets must, therefore, imply something about what is missing and what must be added in the way of legal rules or institutions in order to reach a state of formality; put simply, they imply some idea of a legally “normal” market. This brings us immediately to the baseline problem:34 just as there is no agreement about the indicia of informality, there is no consensus on the legal structure and content of formal labour markets. Instead, their form and substance are contingent, reflecting competing normative and political visions

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as well as the accreted institutional forms of capitalist development in different locales and during different historical periods. Nor is any merely technical, rather than ideological or political, determination of the formal legal structure of a “normal” market available for use as a benchmark or standard, whether in debates about informality or discussions of the regulation of work in general. Rather, the opposite is true: the effects of legal rules and institutions on the bargaining power and resources of informal-sector workers make any such standard inherently contentious. In addition to affecting the distribution of economic gains and political power among market participants, each will encode some – perhaps several – normative visions of a just future of work as well. It is this internal, deeply constitutive relationship between law, work, and power that must be cracked open to build the new paradigm – and this is true whether we are talking about formal or informal work, or whether we even recognize the difference between them at all. 7 towa r d a ( m o r e ) c o m p l e t e l aw o f wo r k ?

We might draw some interlinked observations at this point. First, the space – conceptual and practical – between formal and informal work is badly eroded if not entirely collapsed. Informality may well serve as a placeholder for people and predicaments that warrant our attention. But at the level of law and policy, informal markets are difficult, if not impossible, to distinguish in any analytically robust way from formal markets. Second, once it is recognized that formalization involves “bringing the law” to those who are already subject to law in a variety of ways, we can cease to rely so heavily on the prevailing strategy of exceptionalism. Moving informal work more directly into the frameworks and heuristics applied to other markets and other forms of work, we can then consider how legal rules may help create the very problems that we seek to solve through formalization. Nothing inevitable, of course, flows from these observations. Cate­ gorical distinctions set aside, however, it becomes easier to see, on the one hand, how the legal and practical issues facing formal workers – impaired bargaining power and lack of control over processes of production or service delivery – might resemble if not mirror those faced by workers in informal labour markets and, on the other, why concerns long understood to be relevant to informal workers – access to capital, credit, and broader markets – might affect those in the formal sector

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too. Reframed in terms of the normative concerns of labour law, debates about informality should, of course, seem entirely familiar to labour lawyers, especially those grappling with the legal predicaments around non-standard and precarious work. But the inclusion of informality should be expected to change labour law too: the limits of its characteristic preoccupations, its preferred strategies, and its familial reference points may seem both more evident and more problematic once informal work becomes fully integrated into the field. Like those needed to address precarious work, interventions to address informality will involve competing values and policy considerations: questions of equity and efficiency, administrative capacity, and normative commitments to fundamental rights will all be part of the mix.35 But working conditions, for example, may seem less important than access to property or social protection. Security within contracting chains may prevail over concerns about the bilateral contract relationship in the political calculus. Indeed the agendas of both informal and precarious work might be transformed, especially if, as Harry Arthurs has suggested, they were to be placed within a larger conversation around the “law of economic subordination and resistance.”36 Relocated, a broad range of rules that go well beyond labour law to include economic life in general will then seem pertinent, not only to informal work, but also to formal work, and not merely to its “regulation” but to its design, construction, and conditions of possibility as well. N ot es   1 Harry W. Arthurs, “Compared to What? The u c la Comparative Labor Law Project and the Future of Comparative Labor Law,” Comparative Labor Law and Policy Journal 28 (2006–07): 521.   2 Anne Trebilcock, “Using Development Approaches to Address the Challenge of the Informal Economy for Labour Law,” in Boundaries and Frontiers of Labour Law: Goals and Means in the Regulation of Work, ed. Guy Davidov and Brian Langille (Oxford, u k , and Portland, or : Hart Publishing, 2006), 63; Colin C. Williams and Mark A. Lansky, “Informal Employment in Developed and Developing Economies: Perspectives and Policy Responses,” International Labour Review 152 (2013): 355.   3 Lord Lugard, The Dual Mandate in British Tropical Africa (Oxford, uk : Frank Cass & Co. Ltd., 1922).   4 Guillermo E. Perry et al., Informality: Exit and Exclusion (Washington, d c: World Bank, 2007), http://web.worldbank.org/WBSITE/EXTERNAL/

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COUNTRIES/LACEXT/0,,contentMDK:21345369~pagePK:146736~piP K:146830~theSitePK:258554,00.html, last accessed 24 July 2016.   5 See, for example, i lo, Resolution on Decent Work in the Informal Economy (2002), para. 24–5, http://www.ilo.org/public/english/standards/ relm/ilc/ilc90/pdf/pr-25res.pdf, last accessed 24 July 2016.  6 il o, Resolution on Decent Work in the Informal Economy (2002), para. 14.   7 United Nations Development Programme (u n dp), Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone (New York: United Nations, 2008).   8 Hernando de Soto, The Other Path: The Economic Answer to Terrorism (New York: Harper & Row, 1989); Perry et al., Informality: Exit and Exclusion; David Kucera and Leanne Roncolato, “Informal Employment: Two Contested Policy Issues,” International Labour Review 147 (2008): 321; Williams and Lansky, “Informal Employment.”  9 un dp, Making the Law Work for Everyone. 10 W. Arthur Lewis, “The Causes of Unemployment in Less Developed Countries and Some Research Topics,” International Labour Review 101 (1970): 547. 11 Kerry Rittich, “Fragmenting Work and Multilevel Governance,” in Critical Legal Perspectives on Global Governance: Liber Amicorum David M. Trubek, ed. Gráinne de Búrca, Claire Kilpatrick, and Joanne Scott (Oxford, uk, and Portland, or: Hart Publishing, 2014); Kerry Rittich, “Labour Market Governance in Wake of the Crisis: Reflections and Possibilities,” in The European Crisis and the Transformation of Transnational Gover­ nance: Authoritarian Managerialism versus Democratic Governance, ed. Christian Joerges and Carola Glinska (Oxford, u k , and Portland, or : Hart Publishing, 2014), 123. 12 Guy Standing, The Precariat: The New Dangerous Class (London: Bloomsbury Academic, 2011). 13 Katherine V.W. Stone and Harry W. Arthurs, Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (New York: Russell Sage Foundation, 2013). 14 Judy Fudge, “Fragmenting Work and Fragmenting Organizations: The Con­ tract of Employment and the Scope of Labour Regulation,” Osgoode Hall Law Journal 44 (2006): 609; Williams and Lansky, “Informal Employment.” 15 Williams and Lansky, “Informal Employment.” 16 Basudeb Guha-Khasnobis, Ravi Kanbur, and Elinor Ostrom, “Beyond Formality and Informality,” in Linking the Formal and Informal Eco­ nomy: Concepts and Policies, ed. Basudeb Guha-Khasnobis, Ravi Kanbur,

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and Elinor Ostrom (Oxford, u k: Oxford University Press, 2006), 1; ilo, Resolution on Decent Work and the Informal Economy (2002). 17 Keith Hart, “Bureaucratic Form and the Informal Economy,” in Linking the Formal and the Informal Economy, ed. Guha-Khasnobis, Kanbur, and Ostrom. 18 Lucy Williams, “Poor Women’s Work Experiences: Gaps in the ‘Work /  Family’ Discussion,” in Labour Law, Work and Family: Critical and Com­ parative Perspectives, ed. Joanne Conaghan and Kerry Rittich (Oxford, uk : Oxford University Press, 2005), 195. 19 Ravi Kanbur, “Conceptualising Informality: Regulation and Enforcement” (New York: Cornell University, Department of Applied Economics and Management, Working Paper, February 2009, 09–11). 20 Ibid. 21 ilo, Resolution Concerning Decent Work in the Informal Economy (2002). 22 W.N. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 23 (1913): 16. 23 Williams and Lansky, “Informal Employment.” 24 P. Kotiswaran, Dangerous Sex, Invisible Labour: Sex Work and the Law in India (Princeton, n j: Princeton University Press, 2012). 25 Jorge Esquirol, “Titling and Untitled Housing in Panama City,” Tennessee Journal of Law and Policy 4 (2008): 1. 26 Harry W. Arthurs, “Labour Law without the State?” University of Toronto Law Journal 46 (1996): 1. 27 Donald D. Carter et al., Labour Law in Canada, 5th ed. (Markham, on: Butterworths, 2002); Judy Fudge and Eric Tucker, Labour before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 (Toronto: University of Toronto, 2004). 28 Karl Klare, “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–41,” Minnesota Law Review 62 (1978): 265–339; Case C-341 / 05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan und Svenska Elektrikerförbundet [2007] E.C.R. I-11767; Case C-346 / 06 Rechtsanwalt Dr Dirk Rüffert v Land Niedersachsen [2008] E.C.R. I-01989; Case C-438 / 05 International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line a b p , o ü Viking Line Eesti [2007] E.C.R. I-10779. 29 William F. Maloney, “Informality Revisited,” World Development 32 (2004): 1159. 30 Dan Gallin and Pat Horn, “Organizing Informal Women Workers,” cited in Kucera and Roncolato, “Informal Employment.”

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31 See Diogo R. Coutinho, “Decentralization and Coordination in Social Law and Policy: The Bolsa Família Program,” and Helena Alviar Garcia, “Social Policy and the New Developmental State: The Case of Colombia,” in Law and the New Developmental State: The Brazilian Experience in Latin American Context, ed. David Trubek et al. (Cambridge: Cambridge University Press, 2013), 303 and 345 respectively. 32 Cynthia J. Cranford et al., Self-Employed Workers Organize: Law, Policy and Unions (Montreal, qc, and Kingston, on : McGill-Queen’s University Press, 2005). 33 Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review 36 (1984): 57. 34 The locus classicus on the concept of the normal market is Daniel K. Tarullo, “Beyond Normalcy in the Regulation of International Trade,” Harvard Law Review 100 (1987): 546. 35 Harry W. Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (Ottawa: hrs dc, 2006); Stone and Arthurs, Rethinking Workplace Regulation. 36 Harry W. Arthurs, “Making Bricks without Straw: The Creation of a Transnational Labour Regime,” in Critical Legal Perspectives on Global Governance, ed. de Búrca, Kilpatrick, and Scott, 129; Harry W. Arthurs, “Labor Law as the Law of Economic Subordination and Resistance,” Comparative Labor Law and Policy Journal 34 (2013): 585.

7 Mapping Labour Law With, Within, and Without the State Mark Freedland Oxford

In his rich and abundant œuvre of labour law writings, Harry Arthurs displays a constant fondness for surveying and mapping the terrain as a whole, both analytically and normatively. This little essay thinks about the perspectives from which he conducts his surveys and the projections with which he draws his maps. One of his most influential notions in this regard has been that of “labour law without the state”; it is an idea which supports, and which he has used to support, various different ways of mapping labour law. It variously evokes possibilities of labour law that is internal to the nation-state but independent of the machinery of that state, or labour law that is supranational and transcendent of the nation-state, and thus external to and de-localized from any particular nation-state. This essay argues that his labour law scholarship elegantly occupies the space between these possibilities, managing to display and to interrelate all of them in an especially powerful and distinctive combination. Taking his celebrated “Labour Law without the State?” article, which appeared in 1996,1 as my starting-point, I pursue this argument through two less internationally well-known pieces of his writing, “The New Economy and the New Legality: Industrial Citizenship and the Future of Labour Arbitration” (1999),2 and the more recent “Charting the Boundaries of Labour Law: Innis Christie and the Search for an Integrated Law of Labour Market Regulation” (2011).3 While I think that “Without the State” could be regarded as the flagship of Harry Arthurs’s labour law journal article scholarship,

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my choice to focus on “Labour Arbitration” and “Innis Christie” is a more idiosyncratic one, made for reasons which will appear in the course of this chapter. I deliberately have not undertaken, and would not wish to undertake, a comparative or competitive evaluation of which of the leading scholars of labour law, past and present, does the most and best “mapping” of labour law, but I strongly suspect that such an inquiry would put Harry Arthurs at the top of the list. I think the three journal articles I have selected for discussion show, in and of themselves, that he is the master of spatial and territorial imagery in the depiction and construction of labour law. Moreover, the kind of mapping that he does is, above all, of an evolutionary and predictive kind. Like those great sailors who charted unknown continents by navigating round them, he has an often uncanny feeling for the lie of the land just round the point or even way beyond the horizon. So powerful does this sense and projection of the cartography of labour law become in Harry’s writings that I sometimes find it necessary to remind myself that this discourse of “map-making” is, after all, a metaphorical one rather than a literal one. The “territories” or spaces that labour law occupies are, we need to remember, abstract rather than concrete ones. This having been said, there is such a thing as “political geography” as well as “physical geography,” as I was taught at school, and, moreover, the location of particular systems of labour law in particular lands and societies is, of course, one of the crucial determinants of the complexions of those systems. Harry’s map-making of labour law is quite strongly geographically located; in these three articles at least, his telescope is quite firmly fixed on the labour law of Canada, though I think that nobody has been better than he has at drawing out, from his observations of the evolution of Canadian labour law, implications for and conclusions about the development of labour law in the wider world. The facility that Harry possesses to chart simultaneously the evolution of labour law in the world at large and in his own country of Canada in particular is displayed in a subtle and multifaceted way in “Without the State.” That article, as I indicated at the outset, plays upon a variety of meanings or dimensions of “without-ness,” some connoting absence – so, it articulates the idea of labour law in the absence of the state, but it also evokes notions of labour law as having become external to the state, as in that evocative, though now archaic, usage of “without” as “out with” or “outside,” which we find,

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famously, in the legal parlance of “without the realm.”4 This is a complex idea of the displacement, on the one hand, of labour law from its traditional location within the state, and, on the other, of the state from its traditional role as the pre-eminent agency for the creation and administration of labour law. It is exactly this idea of displacement that “Without the State” presents and develops not only in relation to the labour law of Canada, but also as a paradigm for the evolution of labour law in other national contexts, and, in a real sense, in the democratic world at large. In the expounding and explaining of this idea of displacement or drawing apart as between labour law and the (Canadian) nationstate, Harry Arthurs goes further into map-making and geopolitical mode. Key to the understanding of this mutual displacement of labour law and the state is his presentation of “the new economy,” which is characterized by its globalization. In itself, this was then as it is now a well-worn phrase, but he considerably and crucially refines that idea by arguing that it involves the decoupling from the nationstate of three kinds of “space” – economic, political, and juridical – which used to be coterminous with it, a decoupling that gives rise to an essential dislocation between labour law and the nation-state as they had previously been constituted in relation to each other: [W]e have become used to thinking of the nation-state as three essentially congruent spaces: the political, the juridical, and the economic. Consequently, we have operated on the assumption that a state which wishes to regulate its labour market is able to do so: the labour market lies within its economic space, and the relevant actors, institutions, and processes inhabit its political and juridical space. This congruence of spaces, and the calculus of public policy-making which it supports, are being radically disturbed in the new economy.5 The argument of “Without the State” goes on to show how this decoupling has radical consequences for the character of employment relations and for the shape and complexion of labour law as a “legal field” – that is to say, in Harry’s own words, for the “ideas, institutions, and conventions of professional discourse and praxis [that] provide internal coherence and external boundaries to the legal field we call labour law.”6 This is a theme that, in “Without the State,” he develops in some detail in relation to Canadian labour law and in

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a way which is fairly specific to its Canadian context and its particular historical time. Thus he attaches huge significance, as a “conditioning” factor, to the then still quite new North American Free Trade Agreement, inclining towards the view that na f ta should be perceived as part of a permanent institutional framework which helps to ensure that employers and workers, policy-makers and voters will act routinely and reflexively in response to a set of “givens” – baseline assumptions about what is possible and desirable – which express and facilitate neo-­ conservative values.7 Although this ideological map was presented as a nationally or regionally context-specific one, at the same time he was inviting recognition that he was telling a much more nearly universal story about the labour law systems of the developed world, and I think that, in various ways, this implicit claim has withstood the test of time. Moreover, I take Harry’s impressive insight in “Without the State” to mean, above all, that, in his view, labour lawyers would be well advised to consider not just the detrimental effects of globalization, but also both the lines of continuity between domestic and transnational neo-liberalization and the conceptual parallels between domestic and transnational legal pluralism – a set of ideas as sobering as it is liberating. For the remainder of this chapter, I have chosen to dwell on two pieces of Harry’s labour law writing, each of which is addressed to its own highly localized Canadian audience, but both of which display his remarkable facility at once to draw maps of a particular place at a particular time and, on the other hand, to foresee and chart the paths of the movement of labour law in the world at large. The first of these two, “Labour Arbitration,”8 is the published version of a paper addressed to what must have been very much a local guild meeting, the 16th Annual Labour Arbitration Conference at the University of Calgary in June 1998. While revelling in the opportunity for trade talk and the display of his inimitable brand of caustic humour,9 he nevertheless presents a wonderfully profound and nuanced portrayal of what was happening and prediction of what was likely to happen to the practice of labour arbitration in Canada. In this piece of writing, his aim and achievement was to show how the key economic “conditioning factor” that he had dwelt upon in

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“Without the State” (namely, the arrival of “the New Economy”) was interacting with an equally significant emerging juristic phenomenon that he styled “the New Legality” to produce a combination which he viewed as crucially threatening to the practice and ideology of labour arbitration previously occurring and prevailing in Canada. His argument was a complex and subtle one. On the one hand, the arrival of the globalized New Economy, which he had charted in “Without the State,” had resulted in a rapid diminution of the organized sector of the labour market in which the practices of collective bargaining and labour arbitration were located. More­ over, the extreme liberal orientation of the New Economy had under­ mined the ideology of collective dispute-settlement that sustained the labour arbitration system and nurtured a certain kind of “industrial citizenship.” On the other hand – and this is the intricate, but very cogent, twist to the argument – he also observed the presence of a “New Legality” that appeared to be riding to the rescue of an ailing body of labour law: In all democratic societies, there has been a movement to legally empower citizens. Canada, for example, over the last twenty years, has adopted the Charter, class actions, contingency fees and many other legal innovations: a radical expansion of rights and remedies which ordinary citizens can supposedly use to fight bureaucracy, resist corporate overreaching and vindicate their personal dignity and freedom.10 However, the realization of this “New Legality” turns out to be expensive in terms of the resources both of the state as the provider of justice and of individuals as claimants; and it becomes a feature of the “New Economy” that both the state and individual citizens become less able and less willing to bear those costs. Resorting, as so often, to a territorial metaphor, Harry observes that, paradoxically, the New Economy has also helped to create something of a juridical no-man’s land, a serious gap between law’s promise and law’s performance, a gap that is another feature of the New Legality.11

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If I am in right in thinking of the labour arbitrators assembled in Calgary as quite a down-to-earth body of people, I imagine that they may have been getting a bit mystified at this stage of Harry’s paper; but, in fact, they were being treated to a wonderfully insightful analysis of the way that the institutions for the resolution of labour disputes – collective and, more especially, individual – were going. Moreover, although I might not at that time have recognized the paradigm he was sketching out as one which was applicable beyond Canada, I now regard it as eerily predictive of the way things have since gone in the United Kingdom for those of our institutions which once had similar aspirations to provide informal and inexpensive industrial justice in the service of “industrial citizenship,” in particular the Industrial Tribunals as they were originally styled, or the Employment Tribunals as they have since been named. However, there was still more surveying and charting of the future shape of labour law to be done; Harry remained painfully aware that what he had hitherto described was the displacement and retreat of labour law as traditionally conceived of and practised in Canada, and that a new conceptual and normative map remained to be drawn.12 He chose what was perhaps an unexpected occasion and point of departure for facing up to this necessity and carrying out this task: namely, the inaugural Innis Christie Lecture13 at the Law School of Dalhousie University, of which Innis Chistie had been a muchesteemed dean. Happily for the literary device of my chapter, a “nautical metaphor” was prescribed for his lecture in memory of Innis Christie’s prowess as a sailor, and Harry Arthurs engaged in a new and ambitious general mapping exercise for labour law, “one that can accommodate a multiplicity of continents as yet undiscovered, a plethora of tectonic forces as yet unimagined.”14 In “Without the State” he had been experimenting with the possibility that labour law, displaced and dislocated from the nation-state, could, in some sense, be relocated and reshaped, on the one hand, in transnational regulatory institutions, and, on the other, in the norms of the workplace itself.15 In “Innis Christie” he begins with another kind of thought experiment, stimulated by Innis Christie’s articulation and development of the topic of “(individual) employment law” as the counterpart of the (collective) labour law that applied to the unionized sector of the Canadian labour economy.16 The thought experiment consisted of trying out the idea that collective labour law could now be fused with individual employment law, or, even more

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boldly, regarded as a “subset of employment law” as the young Brian Langille had proposed in an article published in 1981.17 However, for Harry Arthurs, the result of this experiment was that, although it served to demonstrate the magnitude of Innis Christie’s achievement in giving substance to the idea of Canadian employment law, this idea did not provide a large enough platform for the accommodation of labour law itself. Nor, he went on to conclude, could labour law be satisfactorily reconceived as “the law of the workplace”18 in the way that, as we have seen, he had previously imagined as one possibility for “labour law without the state,” nor yet as a branch or species of constitutional law, however much labour law had itself been “constitutionalized” in recent years.19 It was, in fact, for a still more ambitious redrawing of the map and the boundaries of labour law that Harry Arthurs finally argued, a reconceiving of labour law “from political economy” as “the law of labour market regulation.”20 Harry acknowledges that others have preceded him in espousing the terminology of “the law of labour market regulation”; he singles out for mention the work of Simon Deakin and Frank Wilkinson in the United Kingdom and John Howe and Richard Mitchell and others in Australia.21 However, it becomes clear that his own map of this field has an especially grand design, one which would show how “labour markets are regulated by powerful forces of political economy that are invisible, or at least unmarked, on conventional maps of labour law.”22 This aim would be realized by reaching into an extensive hinterland of types of law that seek to regulate those forces of political economy and thereby determine the functioning of labour and employment law as narrowly defined – types such as international trade and investment law, tax law, social welfare law, corporate law, and intellectual property law.23 Moreover, he has imprinted an especially Canadian stamp on his projected map, for example, by referring to the particular importance to labour market regulation of immigration law, which “Canada uses to regulate the wages and working conditions of domestic, agricultural and other workers who come to this country on temporary work permits.”24 Finally, Harry makes the map of the law of labour market regulation uniquely his own – the Arthurs Projection upon the world of labour law – by declaring, with characteristic passion, his reasons for re-envisioning the subject from this long and broad perspective:

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[I]f we insist on using the old map of labour and employment law rather than the new map of labour regulation, we risk purveying legal remedies to clients who are in fact in need of economic power; we risk investing in legal strategies no one can afford rather than in more cost-effective forms of political and social mobilization; we risk teaching students about twigs, branches and trees when they have to understand forests and ecosystems; and we risk proposing band-aid statutory improvements or clever tricks of constitutional magic when only fundamental changes in our political economy will make a difference … That is why we need to design our new map of labour law around the concept of labour market regulation.25 This is a set of arguments with which I strongly agree; it is expressed with an eloquence which I could not hope to equal, let alone surpass, so I content myself with quoting it almost as the conclusion to my respectful and affectionate tribute to Harry’s immense contribution to the international scholarship of labour law. Almost, but not quite the conclusion: I permit myself a further point by way of recapitulation upon this little journey through these three pieces of Harry’s labour law writings. We have observed and commented on his mapping of labour law in three distinct intellectual and practical contexts: in “Without the State,” he was addressing both the national and the international community of labour law scholars; in “Labour Arbitration,” his audience was the gathered assembly of Canadian labour arbitrators; while, in “Innis Christie,” he was specially sharing the memory of their revered dean with the members and the alumni of the Dalhousie Law Faculty. Despite this variety of addressees, all three of these pieces manage to chart the terrain and the development of labour law at the levels both of high theory and day-to-day practice. There is one important feature that all these mapping exercises have in common: they all depict a world of labour law in prolonged crisis. The terrains of labour law charted in these writings are portrayed as fragile and fissile ones; we sense the volcanic rumblings, signalled by occasional irruptions of burning sulphur. This depiction might perhaps at times have appeared unduly apocalyptic; however, I think we all now know – or, at the very least, those of us who survey the field of labour law from a European regional perspective now know – that this projection of crisis is by no means overstated. We

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can observe frequent and, if anything, intensifying manifestations of labour law and labour / employment relations as situated at, or very near, the epicentre of capitalism in crisis. Rereading and writing about these three papers has reminded me what a perceptive, indeed prescient, and accurate surveyor of this troubled and contested territory Harry has been and continues to be. N ot es   1 Harry W. Arthurs, “Labour Law without the State,” University of Toronto Law Journal 46 (1996): 1.   2 Harry W. Arthurs, “The New Economy and the New Legality: Industrial Citizenship and the Future of Labour Arbitration,” Canadian Labour and Employment Law Journal 7 (1999): 45.   3 Harry W. Arthurs, “Charting the Boundaries of Labour Law: Innis Christie and the Search for an Integrated Law of Labour Market Regulation,” Dalhousie Law Journal 34 (2011): 1–18.  4 The Sedition Act of 1661 (13 Car 2 St 1 c 1) made it treason “within the realm or without [to] compass imagine invent devise or intend death or destruction or any bodily harm tending to death or destruction maim or wounding imprisonment or restraint of the person of ... the King” (emphasis added).   5 Arthurs, “Without the State,” 5–6. It is notable that the “insightful commentaries” to which Harry W. Arthurs refers in support of this argument (in fn 15) are both themselves cast in the mould of “maps” or “mapping.”   6 Ibid., 32.   7 Ibid., 26.   8 Arthurs, “Labour Arbitration.”   9 His concluding message to the assembled arbitrators is unforgettably characteristic of him in cynically worldly mode: “For the foreseeable future there is likely to be a market – albeit a volatile and changing market – for your services; keep a good supply of business cards on hand; leave your witness bible in your briefcase; do not delete the standard discharge award from your computer hard-drive. Arbitration may rise again.” Ibid., 63. 10 Ibid., 50–1. 11 Ibid., 51. 12 He is, for example, still obviously preoccupied with this set of problems in his chapter on “Labour Law after Labour,” in The Idea of Labour Law, ed. Guy Davidov and Brian Langille (Oxford, u k : Oxford University Press, 2011).

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13 Published as “Charting the Boundaries of Labour Law.” 14 Ibid., 2. 15 Arthurs, “Without the State,” 43–5. 16 Innis Christie had produced the foundational text Employment Law in Canada (Toronto: Butterworths, 1980). 17 Brian Langille, “Labour Law Is a Subset of Employment Law,” University of Toronto Law Journal 31 (1981): 200. 18 Arthurs, “Charting the Boundaries of Labour Law,” 10. 19 Ibid., 10–12. 20 Ibid., 13. 21 Ibid., 15n52. 22 Ibid., 14. 23 Ibid., 14–15. 24 Ibid. 25 Ibid., 16.

pa r t i i i

Legal Ordering’s Narrow Ledge

8 Dancing with Dicey: A Tentative Embrace of Judicial Review David Dyzenhaus Toronto

1 introduction

Harry Arthurs is Canada’s most distinguished torchbearer of what Michael Taggart called the “tradition of dissent” in administrative law, a group of “leftwing scholars” who are “skeptical of the utility of judicial review in the social and economic spheres.”1 These scholars, located mainly at the London School of Economics and Political Science and Osgoode Hall Law School, are, Taggart said, deeply resentful of what they saw as conservative judges twisting the pliable rules of statutory interpretation to favour the existing order, privileging the rich and powerful, and defeating the purposes of statutes intended to further the interests of workers, the homeless, and the least well-off in society. This antagonism can be traced back to the lamentable treatment of trade unions by the Courts.2 Taggart also noted that some of the scholars in the “Osgoode Hall Camp” “repudiated judicial review altogether,” and that Arthurs “has flitted in and out of that part of the camp for most of his career.”3 In so flitting, Arthurs in effect joined the part of the camp that “stopped short of dismissing the courts out of hand, but directed their withering critiques towards minimizing the judicial role and defining the small compass within which judicial intervention in the administrative process was both justifiable and desirable.”4

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Taggart identified another theme of the camp, its attention to legal pluralism, as a countervailing tendency within administrative law to Albert Venn Dicey’s “legal centrism,” according to which generalist courts are at the apex of a unified legal order, administering the integrated law of the whole system.5 In this regard, Taggart noted Arthurs’s pioneering work in “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England,6 which helped to show that “the concept of jurisdiction operated as a mediating principle, mediating between the ordinary law and the distinctive, special laws of the administration, and thereby leaving room, within jurisdiction, for pluralism to survive, if not flourish.”7 I shall, in this tribute to one of Canada’s pre-eminent legal scholars, discuss these themes as they emerge from Arthurs’s magnificent jeremiad in 1979, “Rethinking Administrative Law: A Slightly Dicey Business.”8 2 w h o s h o u l d b e g ua r d i a n of the constitution?9

The Oxford English Dictionary defines “jeremiad” as a “lamentation; a writing or speech in a strain of grief or distress.” Various online dictionaries agree, but usually add that the writing is “literary,” and Arthurs’s essay fits this criterion as well, as one can see from the lapidary first paragraph: While almost no one today shares Lord Hewart’s phobic reluctance to pronounce “administrative law” except in quotation marks, and while almost everyone is prepared to concede to administrative tribunals at least the minimal legitimacy accorded to all facts of life, there seems to persist an attitude that law and administration are indeed opposites. Law is regarded as an unqualified good; its Rule is perceived as a constitutional impe­ rative. It follows that administration should be accepted only with reluctance and to the extent that it conforms to Law and abjures its own true, but intrinsically wicked, instincts.10 Arthurs’s foil in this essay is Dicey’s conception of the rule of law that he took to animate the ideology around the belief “that the ordinary courts are supreme and the ordinary law all-pervasive.”11 As he pointed out, if ordinary law means “any rule which will be enforced by the courts,” rules that a statute allocates to an administrative

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tribunal to enforce would not count as law, and, indeed, what Arthurs called “administrative statutes” – statutes that “are intended to be either internally self-sufficient or part of a scheme of related statutes” – might also not count. This would lead to the “peculiar conclusion that a law passed by a sovereign parliament does not conform to the Rule of Law.” The practical upshot of the assumption applied to the recalcitrant legal reality of the administrative state is that courts are said to “have the power to domesticate deviant rules and systems, to make them ordinary by ‘adoption.’”12 This process, which, within limits, is implied by the Rule of Law and the practice of judicial review, is a form of alchemy but, unlike the mediaeval art which sought to convert common substances into rare ones, judicial review seeks to reshape unusual laws and tribunals into “ordinary” ones. Nonetheless, it was the approach favoured by Dicey.13 However, as Arthurs shows, Dicey faced a serious problem because of his acceptance of a doctrine of judicial obedience to clearly stated parliamentary command. Since, according to this doctrine, a statute is valid whatever its content as long as it complies with the formal criteria for validity of the legal order, it follows that Parliament, as long as it is explicit enough, can decree that the rules made by administrative tribunals have the force of law and are not to be reviewed by judges.14 Still, to the extent that the statute is not explicit in this way, judges can interpret the law in a way that they say is required by “their professional commitment to principles which promote symmetry and consistency in interpretation.” However, or so Arthurs claimed, in this process judges betray their anxious attempt “not to know what the statute really was intended to accomplish so that they can choose from amongst the possible interpretations the one which most closely coincides with ‘the spirit of the common law’, social policies which it embodies or which they espouse, or the equities of the particular situation.”15 But Arthurs also felt compelled to recognize “the need to vindicate  … constitutional values,” though not in a way distorted by ­making law “‘ordinary’ by interpretation.”16 These are the “transcendental ... fundamental values which we prize in our general legal system.”17 Given the absence of a distinct system of specialized administrative courts to ensure vindication without distortion, he did

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not quite follow the prophets of the Old Testament and foretell a radical destruction of the status quo. Rather, “to the extent that these [constitutional] reviewing functions are not performed elsewhere in the legal system,”18 he reluctantly conceded to the “ordinary” courts the role of guardians of the constitution. He thus took on the task of sketching the kind of stance that judges should take to the tribunals of the administrative state. As I shall now show, this sketch provided ideas that Canadian courts adopted almost wholesale in the judicial reforms that began in 1979, the year of publication of Arthurs’s essay. I shall also suggest that these reforms put in place the rudiments of a legal “culture of justification,”19 one which has a logic of its own that was altogether implicit in his argument. Indeed, one might conclude that Arthurs’s embrace of judicial review was more than tentative because he saw principled as well as prudential reasons for giving the ordinary courts a guardianship role over the pluralism of the administrative law system. 3 towa r d s a c u lt u r e o f j u s t i f i c at i o n

As I have pointed out elsewhere, it is not exactly clear what Arthurs meant by pluralism.20 No one will deny, for example, that the substantive policy of the immigration law regime will differ from that of labour boards, and so on. A second, much thicker, sense of pluralism is that, insofar as different regimes should be governed by norms of procedural fairness and should stay within the limits of their mandates, they are the ultimate and best judges of how those norms should apply and what the limits are. But Arthurs did not want this thicker sense of pluralism, because it allows officials to determine the content of precisely the sorts of constitutional values he deemed transcendent and therefore to be guarded by the ordinary courts. Rather, it seems, he wanted something in between, as is illustrated by his disagreement with Peter Hogg. In a customarily lucid analysis of judicial review published in 1974, Hogg insisted both that agencies are best placed to make decisions about what is required in their own specialized contexts and that judicial review has an important role just because judges are generalists and thus can ensure the “integrity” of the legal order. Hogg also disapproved of the idea of a specialized administrative court, arguing that something like the French Conseil d’État cannot simply be imposed on a different legal and constitutional tradition. Further, he

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suggested that a specialized court risks either being too sympathetic to the administration, thus losing “sight of competing democratic or libertarian values,” or becoming too confident and thus insufficiently deferential to the administration.21 Arthurs expressed broad sympathy with this analysis, objecting only to some of the details of Hogg’s account of appropriate judicial review: that one needs ultimate control by judges of “general values which are fundamental to the legal order as a whole”; that such control requires that administrative interpretations of the empowering statute be “reasonable”; that “invasions of fundamental civil liberties should be authorized by relatively clear language”; that the basis of discretion should be reasonably related to the purpose of an empowering statute; that procedural fairness should be observed; and that privative clauses should be circumvented in the “rare extreme case” where either bona fides or rationality is lacking.22 Arthurs’s objection was not to the “formulations in themselves,” but to the fact that terms such as “reasonable,” “fair,” and “bona fide” are too equivocal. They put us on to a slippery slope, since they “compel no concessions to context, although they permit a sympathetic judge to defer to administrative decisions if he wishes.” A more “rigorously ‘functionalist’” approach would, Arthurs says, frame questions differently: Are there elements of the administrative decision over which judges “trained in general law” have special competence relative to the administration – constitutional questions, interpretation of statutes other than the one being administered? “Has the administrative agency, by its failure to tender a (credible?) explanation for the adoption of a particular procedure, deprived itself of the presumptive deference attributable to its special knowledge?” He also says that what constitutes appropriate procedures depends on knowledge of the subject matter and thus that it is “functional” to defer to those who have this knowledge. And he concludes as follows: In the end, it must be conceded, it is the judges’ sensitivity and self-restraint which will determine where the line is to be drawn between general rules and specific contexts. What is argued is that they should be encouraged to give proper weight to the force of specific context by formulations which do not either encourage adherence to the general or permit it by an obfuscating vagueness. And the reason for this position is a “functional”

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one: it is the administration which is the chosen instrument of public policy, not the courts; the full range of practical benefits is most likely to be secured if the administration is permitted to solve problems according to its distinctive norms, rather than those of the courts.23 The distance between Hogg and Arthurs looks rather short. It really boils down to the difference between “credible” and “reasonable.” Arthurs, however, asserted that there is a fundamental distinction at stake, one that divides “legalists” from both “public lawyers” and “functionalists.” Legalists make “the case for judicial integration of administrative and general law on the basis of legal principle,” though, unlike Dicey, they accept that the general law must accommodate “administrative experience and exigency.” In contrast, public lawyers want a “coherent and distinctive public law jurisprudence, preferably administered by special institutions, which reflects the general techniques and traditions of the legal-administrative system, rather than those of public law,” while the functionalists are “less concerned with developing generalizations about public law. Rather, they are prepared to allow the specific tasks at hand to shape the particular legal-administrative response, and to countenance the emer­gence of largely autonomous systems in various sectors of admi­ nistrative activity.”24 But this, I shall argue, is a distinction between styles of academic analysis and not one that can be made within the practice of adjudication. At most, it translates within practice to levels of intensity of judicial review, calibrated – to the extent that these things can be calibrated – by the techniques that judges have developed as mechanisms of “sensitivity and self-restraint.” Recall that, in 1979, Arthurs urged reform of the practice of judicial review and not the destruction of the institution, as, we might note, Jeremy Bentham – the founder of the dissenting tradition – had advocated. And if one looks back at judicial review in Canada since Arthurs published his essay, it is striking that its year of publication also saw the publication of two of the most important decisions in Canadian administrative law: c u p e 25 and Nicholson.26 c u p e responded to the problem of privative clauses that seem explicitly to deprive judges of their jurisdiction to review the decisions of the officials charged with implementing the statute. Such clauses were the legislative reaction to unwelcome judicial review of

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the sort the dissenting tradition railed against, and judges had, in the past, either meekly submitted to their diktat or used interpretative techniques to sidestep the clauses, precisely what the tradition regarded as the disingenuous sleights of hand of the common law. c u p e in contrast did not understand the clause as a negative prescription against any review, but as a positive instruction to defer. Courts should intervene only if a tribunal’s decision were patently unreasonable. However, the Court did reserve to judges the authority to police the limits of a tribunal’s authority, on it seemed a correctness standard, with the injunction that they should not be “alert” to “brand” issues as jurisdictional.27 It thus staked out a middle ground between the bad options of the judicial arbitrariness that occurs when judges simply superimpose their views on the statute and the official arbitrariness that results when officials have an unreviewable authority. Now, while c u p e seemed to mandate a hands-off stance to judges when it came to review of the administrative state, Nicholson might have seemed to do the opposite, since it held that, when it came to procedural fairness, judges should discard the prejudice that certain kinds of administrative decision-making – decisions by bodies that do not operate “quasi-judicially” or like a court – are intrinsically immune from judicial review. However, in my view, the Court did not, in 1979, send out contradictory messages about judicial review. Rather, on the one hand, it insisted on official accountability to the law, including the principles of the rule of law, while, on the other, it required that judges not second-guess the officials as long as their decisions were interpretable as reasonable understandings of their legal mandate. As I have argued elsewhere,28 these two decisions put in place a principle of legality that requires the administrative state to operate under the regime of the rule of law, while at the same time recognizing that it is for the legislature and its administrative delegates to make decisions about substance, in that it is they who should decide on particular outcomes. In other words, once judges accept that the administrative state operates or should operate in accordance with the principle of legality, they also accept the legitimacy of administration. But they cannot accept the legitimacy of administration without, at the same time, relinquishing, to a large extent, any claim to have a monopoly on interpretation of the law. This position was confirmed and given further articulation twenty years later by the Supreme Court in Baker,29 when Justice Claire

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L’Heureux-Dubé held that exercises of discretion as well as administrative interpretations of the law are subject to reasonableness review, but that, in both cases, judges had to defer to officials by adopting a stance of “deference as respect” that requires that judges pay “a respectful attention to the reasons offered or which could be offered in support of a decision.”30 In addition, she held that, where an official decision affects a legally protected interest, those affected are enti­­ tled to more than an opportunity to present their side of the case to the official; they are also entitled to the reasons from the official that purportedly justify the decision.31 It has not been an easy task for the Court to work through the implications of these three decisions. There is an at times bewildering jurisprudence on deference, which the Court made a valiant, but likely futile, attempt to clarify in Dunsmuir in 2008.32 In addition, the Court has struggled both to work out its conception of appropriate reason-giving33 and to resolve the question of whether a reviewing court is entitled to evaluate the weight given by an official to particular reasons.34 Finally, while the Court has, for many years, said that administrative tribunals that have the authority to interpret the law relevant to their decisions must also be accorded an authority to interpret the Charter of Rights and Freedoms, it remains unsure what to make of the relationship between review of statutes that affect Charter-protected rights and interests, and review of particular administrative decisions that do the same.35 But, if one takes a long view of the development of Canadian administrative law since 1979, it would be no exaggeration to claim, first, that the Court has undertaken exactly the task of reforming administrative law that Arthurs set for it in that year, and second, that the difficulties that it has encountered are no more than those inherent in a position that both advocates deference to the decisions of the pluralistic administrative state and recognizes that judges should be the guardians of constitutional values.36 Moreover, while Arthurs seemed to want judges to perch on a point short of Hogg’s reasonableness review but sufficiently robust to maintain their role in  preserving constitutional values, the story of judicial review in Canada shows that it is very difficult for judges to find a resting place short of reasonableness review, even when they are self-consciously committed to “sensitivity and self-restraint.” To the extent that they do, for example, by claiming that they should evaluate official determinations of the weight of reasons without themselves re-weighing

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the reasons, this is surely a case where the judges are doing what Arthurs referred to in a comment that he did not mean kindly as the rule of law not “stoop[ing] to conquer.”37 In light of these developments, we should also see that there is very little distance between the legalists, the public lawyers, and the functionalists, and thus between Dicey and Arthurs. I suggested above that the distinction between these camps is, at most, one between academic styles of analysis, and cannot be made within the practice of adjudication. Judges cannot make it because their premise is that all decisions with the force of law have to be justified to those subject to the decisions as having a proper basis in law, where “law” means more than a discrete statutory delegation of authority to an official, since it includes the rule of law and whatever values are recognized as the transcendent, constitutional values of the society. Judges will vary in their precise understanding of their role in maintaining this “culture of justification,” but no matter how deferential they are to officials, and respectful both of their reasons and of the pluralism of the administrative state, they cannot escape from their duty to ensure that official decisions do have the legal warrant officials must claim. Similarly, while some scholars will tend to counsel more deference and some less, it is likely that they will all appreciate that the degrees of deference or the levels of intensity of judicial review will vary from context to context and from issue to issue within a context. And Arthurs, in 1979, argued for just this kind of appreciation.38 It also seems clear that even Dicey became, with time, less of a “legalist” and more of a “public lawyer.” He came to see better both the need for public law to take account of the “general techniques and traditions of the legal-administrative system,” and the possibility of doing so in a way that permitted the rule of law to exercise its discipline over this system. As a result, he began to craft an understanding of the ordinary law deployed by the ordinary courts on judicial review much more akin to our contemporary understandings of the principle of legality than to the idea of private law rights that underpinned his first polemic against the French system of administrative law.39 This understanding of ordinary law as the principle of legality that gets hashed out in various grounds of review – for example, fairness or reasonableness – is now widely shared. On the one hand, legalists recognize that judges are not the guardians of some antediluvian ­conception of private rights which all administrative decisions must

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respect, with the result that they not only see judges as guardians of the principle of legality, but also understand that the principle has to be understood in particular contexts, with the reasoned views of those who operate in those contexts given due respect. On the other hand, functionalists accept that administrative officials need to work under the discipline of legality and that the officials should not decide for themselves whether they are successful in meeting legality’s demands. Review by an independent body of judges, alert to their role as guardians of principle but also sensitive to the expertise of officials, is required. Since Arthurs laid the groundwork for these developments, we can justly conclude that it is largely due to him that we are all public lawyers now. N ot es   1 Michael Taggart, “Prolegomenon to an Intellectual History of Adminis­ trative Law in the Twentieth Century: The Case of John Willis and Cana­ dian Administrative Law,” Osgoode Hall Law Journal 43 (2005): 223, at 257–8. Taggart attributes this term (at 257n194) to Richard Rawlings, “Distinction and Diversity: Law and the ls e,” in Law, Society and Eco­ nomy: Essays for the London School of Economics and Political Science 1895–1995, ed. Rawlings (Oxford, u k: Clarendon Press, 1997), 1, at 7.   2 Taggart, “Prolegomenon,” 257–8.   3 Ibid., 259.  4 Ibid.   5 Ibid., 261.   6 Harry W. Arthurs, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto Press, 1985).   7 Taggart, “Prolegomenon,” 261, referring to Arthurs, Without the Law, 208–9n211.   8 Harry W. Arthurs, “Rethinking Administrative Law: A Slightly Dicey Business,” Osgoode Hall Law Journal 17 (1979): 1.   9 The title of this section alludes to the debate between Hans Kelsen and Carl Schmitt in Weimar; for a translation of this important debate, with an introduction, see Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (Cambridge: Cambridge University Press, 2015). 10 Arthurs, “Rethinking Administrative Law,” 1.

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11 Ibid., 7. 12 Ibid., 8–10. 13 Ibid., 14. 14 Ibid., 16–17. 15 Ibid., 18. 16 Ibid., 22. 17 Ibid., 43, 44. 18 Ibid., 45. 19 The term “culture of justification” was coined by Etienne Mureinik, a South African public lawyer, to describe what he took to be the ambition of South Africa’s Interim Constitution: see Etienne Mureinik, “A Bridge to Where?: Introducing the Interim Bill of Rights,” South African Journal on Human Rights 10 (1994): 31, 32. 20 My discussion of Arthurs in this section draws on my “The Logic of the Rule of Law – Lessons from Willis,” University of Toronto Law Journal 55 (2005): 691. 21 Peter Hogg, “Judicial Review: How Much Do We Need?” McGill Law Journal 20 (1974): 157. Hogg did not mean by “libertarian” anything more than “liberal.” 22 Arthurs, “Rethinking Administrative Law,” 32. 23 Ibid., 33. 24 Ibid., 29. 25 Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227. 26 Nicholson v Haldimand-Norfolk (Regional) Board of Commissioners of Police, [1979] 1 S.C.R. 311. 27 c u p e , at 233 and 237. 28 See, for example, my paper with Evan Fox-Decent, “Rethinking the Process / Substance Distinction: Baker v Canada,” University of Toronto Law Journal 51 (2001): 193. 29 Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. 30 Baker, 859. The term “deference as respect” was my coinage – see David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy,” in The Province of Administrative Law, ed. Michael Taggart (Oxford, uk : Hart Publishing, 1997), 279, at 286. 31 Baker, 848. 32 Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190. 33 Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador, [2011] 3 S.C.R. 708.

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34 Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. 35 Doré v Barreau du Québec, [2012] 1 S.C.R. 395. 36 As far as I can tell, there has been only one reference to Arthurs’s essay on Dicey in Supreme Court jurispudence, though it is a highly significant one in which Madam Justice Wilson endorsed his position in an unusually academic essay on the rule of law within a judgment in National Corn Growers Assn. v Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at 1332. But no one reading Arthurs’s essay today can fail to be struck by how closely the Court has, over time, attempted to follow his prescriptions. 37 Arthurs, “Rethinking Administrative Law,” 9. 38 For example, ibid., 18, 33. 39 I am indebted here to various publications that have appeared in Mark Walter’s path-breaking project of retrieval of Dicey’s thought, which will be published as a monograph in the series Cambridge Studies in Constitutional Law, and in particular to an as yet unpublished paper, “Public Law and Ordinary Legal Method.” See, for example, Walters, “Legality as Reason: Dicey, Rand, and the Rule of Law,” McGill Law Journal 55 (2010): 563.

9 Administrative Justice in Arthurs’s Court Lorne Sossin Toronto

But that administrative law exists, that administrative law is distinctive, that administrative law is important – these are propositions which are now beyond dispute. What is “law” today if not taxation and immigration, environmental and planning, labour and consumer protection law? And what are any of these if not “administrative law”? Administrative law is unlikely to be swallowed again by the whale. Its preoccupations now are how to find the right way home. Harry Arthurs1

introduction

Harry Arthurs has helped shape Canadian administrative law, and, in particular, the evolution of our understanding of the shadow cast by judicial dominance over administrative tribunals and regulatory decision-­makers in the name of the rule of law. Arthurs has also shaped the development of the administrative justice system by demonstrating the value and potential of pluralism in the forms, structures, and purposes of public bodies to help realize democratically infused social and economic justice. In this chapter, I examine Arthurs’s critique of the rule of courts and the place of pluralism in the universe of law. I also observe that Arthurs’s critique appears to gloss over the emerging dynamics within the executive branch of government in his vision of administrative law and administrative justice.

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In the first part of this chapter, I discuss how Arthurs uses admi­ nistrative law as a point of departure for his foray into both conceptual and empirical critiques of the Diceyan narrative of law, and the primacy of the judiciary in that vision. The first part considers what I term the first phase of Arthurs’s engagement with administrative law in the late 1970s and early 1980s. In the second part, I focus on  the administrative state and the forces such as globalization, ­neo-­liberalism, and new public management ideologies, all of which shape administrative justice. This second phase of Arthurs’s engagement with the field covers the early and mid-2000s. In both phases of Arthurs’s writing on administrative law, the progressive potential of pluralism is an ongoing theme. I conclude with some reflections on the future of pluralism in administrative law. pa r t o n e : i n a r t h u r s ’ s c o u r t

The influence of Albert Venn “A.V.” Dicey on the common law legal systems (including, of course, that of Canada) is hard to overstate. Axioms about the rule of law, parliamentary sovereignty, the role of courts, and the place of the judiciary in the justice system have all been shaped by Dicey’s intellectual tentacles. In Harry Arthurs’s vision of administrative law, Dicey is the nemesis. Arthurs captures his divergence from Dicey in the following terms: Dicey, the revered author of The Law of the Constitution, wrote that the notion of administrative law – as a special type of law dealing with official bodies – was “utterly unknown to” and “­fundamentally inconsistent with” English law, traditions, and customs. In this, as I believe in so many other respects, Dicey was profoundly wrong. I hope to persuade you that adminis­trative law has been quite well known to the English legal system for at least 150 years, and that it belongs to an indigenous legal tradition which we have, perhaps to our own disadvantage, forgotten.2 Arthurs’s 1979 cri de coeur on administrative law, “Rethinking Administrative Law: A Slightly Dicey Business,” challenged the characterization of the “Rule of Law” as juxtaposed with the decision-­ making of administrative tribunals.3 He argued that Dicey’s broader agenda was not upholding legal rights, but rather attacking “collectivist” legislation and statutes from which administrative tribunals

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and regulators and the mandates of those bodies arose. The inherently conservative predisposition of the judiciary is one of the important fixed stars in Arthurs’s administrative law firmament. What does shift, as discussed below, is the socially progressive disposition of the legislature, based upon the rising (as in the immediate post-war era) and declining (as in the neo-liberal, globalized era in which we find ourselves now) effects of democratic pressures. In Arthurs’s vision, administrative law is first and foremost where these gravitational pulls are worked out. Dicey famously referred to the ultimate recourse to the rule of “ordinary” law through “ordinary” courts as constitutive of the common law constitutional system. Arthurs observed, however, that this law and those courts have typically favoured the protection of property rights, market rights, and restraint of labour, protest, and regulatory activism. By contrast, the forces that have sought to ad­­ vance spheres of independence and autonomy for administrative bodies have sought to advance legislative policy and collectivist goals, evidence- and expertise-based implementation of statutory ­mandates, and the pursuit of the public interest in the face of unequal resources and capacities in society. Arthurs’s support for this vision of administrative law was empirical and historical as well as both functional and normative. For example, one of his most trenchant critiques of Dicey concerns the reality of nineteenth-century England and the relative roles of courts and tribunals. As he would subsequently demonstrate in his booklength study, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England,4 England was characterized by adjudicative pluralism rather than uniformity. In his 1980 Cecil Wright Lecture at the University of Toronto, Arthurs summarized this misconstrued history: It is difficult for us to appreciate today, and it was difficult for Dicey to appreciate, that until the mid-nineteenth century, the English legal system was highly pluralistic. By this I mean to ­convey that the superior courts of law at Westminster were but one amongst many recognized systems of dispute resolution and adjudication. The procedures, the norms of decision, the credentials of the decision-makers in these other systems differed from those of the superior courts. Their work was – sometimes in principle, sometimes in practice – immune from scrutiny by those courts. And their legitimacy, at least in the eyes of their

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special clientele, if not in the view of lawyers, was no less than that of the superior courts, and sometimes rather more.5 This understanding of judicial dominance as mischief is consistent with the anvil on which administrative justice was forged in the early post-war era.6 Arthurs contributed to a critical conversation about judicial review in the late 1970s and early 1980s.7 And, in turn, critiques of judicial review constituted the core of administrative law in Canada (as opposed, for example, to the United States, where the core of the field arguably has focused on rulemaking and the separation of powers between the legislature and the executive). The arguments which Arthurs advanced in his “Rethinking Admin­ istrative Law,” in many respects, animated the Canadian Supreme Court’s turn toward deference in the late 1970s and early 1980s. The turning point for Canadian administrative law was the Supreme Court’s decision in c u p e v New Brunswick Liquor.8 In this case, the Court affirmed a new paradigm of review in which courts would intervene in administrative decision-making only in cases where it could be shown that the decision was “patently unreasonable.” Dickson J. (as he then was) rationalized increased deference by reference to the broad powers of the Public Service Labour Relations Board, the “delicate balance” that the enabling legislation required the Board to strike between the need to maintain public services and the right of collective bargaining, and the specialized nature of the legislation that the Board had to apply and interpret. In a subsequent decision, National Corn Growers Association v Canada (Import Tribunal), Justice Bertha Wilson, in a concurring set of reasons, characterized c u p e as a reflection of how Canadian courts moved away from the picture that Dicey painted toward a more sophisticated understanding of the role of administrative tribunals in the modern Canadian state … Courts have also come to accept that they may not be as well qualified as a given agency to ­provide interpretations of that agency’s constitutive statute that make sense given the broad policy context within which that agency must work.9 Justice Wilson even suggested a meeting of minds between the judiciary and Arthurs in this regard. As she explains in her judgment:

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It is my view, then, that courts in this country have come to accept that there is a significant measure of truth to the comment of Professor Arthurs in “Protection against Judicial Review” (1983), 43 R. du B. 277, at p. 289: “There is no reason to believe that a judge who reads a particular regulatory statute once in his life, perhaps in worst-case circumstances, can read it with greater fidelity to legislative purpose than an administrator who is sworn to uphold that purpose, who strives to do so daily, and is well-aware of the effect upon the purpose of the various alternate interpretations. There is no reason to believe that a legally-trained judge is better qualified to determine the existence or sufficiency or appropriateness of evidence on a given point than a trained economist or engineer, an arbitrator selected by the parties, or simply an experienced tribunal member who decides such cases day in and day out. There is no reason to believe that a judge whose entire professional life has been spent dealing with disputes one by one should possess an aptitude for issues which arise often because an administrative system dealing with cases in volume has been designed to strike an appropriate balance between efficiency and effective rights of participation.”10 While c u p e (and its progeny) signalled a new era of respect for the policy expertise and collectivist goals of administrative justice, it also entrenched the Diceyan ideal that recourse to ordinary courts applying the ordinary law from all forms of administrative decision-­making was a necessary corollary to the rule of law.11 Dickson J. indicated that a patently unreasonable error would include: acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the pro­ visions of natural justice or misinterpreting the provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.12 Dickson J., in a formulation of the standard of “patent unreasonableness” premised on the ultimate authority of the Court, stated: Did the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to it?

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Put another way, was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?13 While deference may be a goal, judicial supremacy over the content and scope of the rule of law underpins the Supreme Court’s project. The field of Canadian administrative law wrestled with how to balance the ultimate authority of courts with a culture of deference for the past generation: first with two distinct standards of review14 (patent unreasonableness and correctness); and then three,15 with the addition of reasonableness simpliciter as a mid-point between correctness and patent unreasonableness when some, but not complete, deference was called for; and then most recently a further two, with the development of standards of correctness and reasonableness.16 The number and the nomenclature do not matter much in the end, however, as the tensions underlying judicial review remain rooted in the Diceyan debate: should judges be able to interfere in and override the legal determinations of administrative boards, tribunals, commissions, and regulators, and, if so, upon what basis and for what ends? While courts and tribunals pursued this jurisprudential and conceptual journey, the administrative state was itself transforming in ways that had significant implications for administrative law – and for Arthurs’s understanding of its relevance. By the late 1970s, the welfare state and the command-and-control model for state regulation were both under siege. The rise of neo-liberalism and its focus on clearing away “red tape,” pruning public servants through “pink slips,”17 and privatizing and outsourcing more public functions challenged key premises of administrative law that arose to govern public decision-makers applying public rules. By 1990, as Air Canada, PetroCanada, Via Rail, and other Crown  Corporations were being pri­ vatized, the discourse of public regulation in Canada had shifted to managerialism, efficiency, and “doing more with less.”18 Indeed, arguably this transformation gave rise to new forms of administrative law itself – the shift, for example, away from a procedural fairness model in the process of hiring and firing public servants,19 and toward purely contractual models or defining the relationship between the state and the public service.20 More cynically, as fewer resources were available for rural water safety and environmental regulation, more resources were invested in public inquiries into the tragic consequences of contaminated water.21

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What has been referred to as the fall of regulation and the rise of “governance” was taking place in Canada (and elsewhere),22 at the very moment when administrative law was witnessing the erosion of the judicial review and the rise of what David Dyzenhaus has referred to as “the culture of justification.”23 In other words, the hegemony and stability of judicial review may be just one among many casualties of the social and economic upheaval happening throughout the state. Rather than the command-and-control exercised by a generally conservative judiciary over a generally activist set of regulatory and public-interest state interventions in social and economic life, administrative law has become more facilitative of new forms of state activity – partnerships, collaboration, self-regulation, and soft law. Ironically (perhaps), the one area of state activity that was becoming more robust over this period – national security – was also fostered by the rise of deference and the retreat of judicial oversight. The Supreme Court in Suresh24 (decided just months after 9 / 11) found that the minister of Citizenship and Immigration had acted reasonably in deporting a person to Sri Lanka notwithstanding prima facie evidence that he would be tortured upon his return. The statute had conferred the widest possible discretion to the minister to determine national security in such circumstances, and it would be overstepping for the Court to intervene simply because it found the actions “unsavoury” (or inconsistent with international human rights principles). But in a nod to the rise of procedural justice,25 the Court found that the process by which the minister reached the decision – and, in particular, the failure to provide Mr Suresh with any opportunity to address the allegations against him – failed to comply with the duty of fairness (as imported into the Charter of Rights and Freedoms). In other words, deporting a person to be tortured did not offend the rule of law, but doing so without a hearing could not be tolerated. While Arthurs played an instrumental role in the doctrinal (r)evolution in Canadian administrative law, it was clear his greater interest was in this complex and interrelated set of forces acting upon administrative justice. It is to this phase of Arthurs’s engagement with administrative justice that my discussion now turns. pa r t t wo : a r t h u r s ’ s s tat e o f m i n d

In the first part of this chapter, I explored Arthurs’s engagement with administrative law doctrines and their conceptual and empirical challenges. For Arthurs, as I have suggested, the interstices of deference

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have proven less interesting than the broader forces at work (seen and unseen) on the administrative state. Far from the doctrinal and conceptual debates about the proper role for judges, this next phase of Arthurs’s engagement with administrative law would focus on existential threats to the field, its scope, and its relevance in the future. The modern administrative state, since the late-1970s era that produced c u p e and the turn toward deference in administrative law, has come to be defined less by the state regulating social and economic life than by the state cajoling private (and other public) actors to regulate themselves according to public-interest standards. In this vision of the state, the focus is less on ensuring substantive compliance (which would mean hiring personnel that would cost too much) than on creative approaches to collaboration with those being regulated and an exaggerated commitment to procedural enforcement (e.g., the duty to negotiate, the duty to consult and accommodate, the duty of fairness, etc). To take just one example of the new administrative state, consider the Access for Ontarians with Disabilities Act (ao da ).26 This progressive set of accessibility standards was first enacted in 2005. It required, over a fairly long time horizon, that public- and private-sector organizations and businesses had to file accessibility plans of  how they would meet the standards set out in the Act (with a final deadline for such filings of 31 December 2012). Ten years later, disability-­rights activists claimed the government was failing to enforce its own scheme. Noncompliance among businesses with twenty or more em­­ ployees (approximately 36,000 businesses in Ontario) was r­unning at 70 per cent, and it was reported that twenty-five million Canadian dollars were earmarked for enforcement.27 n g o s had to file Freedom of Information requests to discover just how few plans had actually been filed.28 The Ontario government responded with an independent review (conducted by then–University of Toronto Law Dean Mayo Moran).29 It concluded that the Ontario government needed to match its rhetoric about an equal and accessible society with resources for enforcing the requirements of the aoda . Moran concluded: There can be no doubt of one central theme that emerged loud and strong from all of the consultations, and that is the vital importance of robust, effective and visible enforcement to the integrity of the aoda regime. A wide range of stakeholders reported that the lack of visible enforcement is a critical impediment that is holding Ontario back from achieving the 2025 goal for an accessible province … This concern, it should

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be noted, is by no means limited to disability advocates. Others including business groups observed that the Government has shown little appetite to wield the substantial enforcement ­mechanisms contained in the legislation.30 Sagas similar to this one have played out across the country in diverse fields from the treatment of children in foster care to the regulation of natural gas facilities. In almost every case, publicly funded reviews find that the erosion of public funding and the hollowing-­out of public infrastructure have led to failures to meet public standards. Or, to use the lingo of the era, administrative law might continue to steer (or at least set the parameters by which others steered) but would no longer row when it came to state action. The state would no longer regulate so much as mediate, facilitate, report, and possibly even, sometimes, supervise. As people’s rights came to be determined far more through market relations and contractual frameworks, the rule-of-law rationale for judicial intervention became less and less relevant. Perversely, this phenomenon gave rise to many claims that bypassed administrative law altogether and sought avenues of redress directly from courts – launching, for example, class actions for billions of dollars in damages for regulatory failure in spheres ranging from mad cow (b se ) and sa rs outbreaks to the neglect in psychiatric facilities and Indian Residential Schools (this may also have had something to do with the commodification of legal services and the rise of lawyerentrepreneurs seeking a share of the privatized redress paid to those harmed by state action).31 In “The Administrative State Goes to Market – And Cries Wee, Wee, Wee All the Way Home,”32 Arthurs revisits the debate around the scope and purpose of administrative law as part of a series of essays in honour of the contributions of John Willis. He opens the article by posing large questions: “What is administrative law? What shapes it? What is transforming it?” Arthurs suggests that administrative law has been transformed by three key encounters with the market: neo-liberalism, globalization, and intellectual innovation. He rejects the notion that judicial review defines the scope of administrative law,33 and instead provides the following account for his conception of administrative law: A proper definition of administrative law, in my view, ought to capture the experiences not just of jurists but of the citizens,

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communities, corporations, civil servants, commentators, and politicians who consume and produce it. Such a definition – of what I will refer to as real administrative law – would have to be broad enough to include all the complex and diverse normative regimes that organize, animate, and regulate the admi­nistration of the state. It would therefore encompass not just one comprehensive system of administrative law but a congeries of systems of special law, each indigenous to a particular field of state administration with its distinctive values, rationalities, and culture. Judicial review, by contrast, is exogenous, not in­digenous, to the administration. Far from reinforcing the unique characteristics of special administrative legal regimes, it exists precisely to make real “administrative law more ordinary,” to subordinate it to universal, or at least constitutionally superordinate, principles. While to some extent ordinary law clearly does organize, animate, and regulate the administration of the state – if only in terrorem – it often does so in ways that are indifferent to functional requirements, inimical to state ­policy, and unpredictable in their long term consequences. Real administrative law, then, may include the law of judicial review at its margins, but it cannot be reduced to it.34 [notes omitted] Arthurs concludes that “real” administrative law is, in fact, not law at all, but a more dynamic intersection of broader dynamics shaping state action. Arthurs argues that administrative law in the end is “concerned with how politics, economics, culture, social change, and discursive strategies define the state’s role in the lives of its citizens.”35 In this sense, Arthurs highlights the retrenchment of the administrative state in the face of neo-liberalism and globalization, as it deregulates, privatizes, and diminishes regulatory oversight and public intervention in the market. All of this combines to dampen the democratic tendencies which, in Arthurs’s formulation, once animated the administrative state. Arthurs notes that, in the marketplace of ideas about administrative justice, those who advance constitutional paradigms for the field and rights-based approaches appear in ascendance.36 Like the rule of law as a justification for judicial review and the constraint of collectivist regulation of the market, the focus on “rights” also advances a particular anti-collectivist agenda. Arthurs explains: But why human rights? For many reasons: because proponents of constitutionalism and the rule of law actually believe in human rights; because the human rights motif makes

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disem­powerment of the administration a plausible project; because ­citizens have been persuaded to abandon solidaristic mass ­movements with class-based identities for new identities as indivi­dualistic bearers of rights; and because corporations, unlike individuals, will be able to use the new human rights discourse in litigation to protect their own freedom of expression (to advertise commercial products), freedom of association (to finance friendly political parties or advocacy groups), rights of private property (to be free from taxation and regulatory takings), and due process rights (to be tried in conventional courts that cannot and will not effectively control them, rather than in specialized administrative agencies that might be able to do so). It is important to acknowledge, however, that human rights, constitutionalism, and judicial review would not enjoy such prominence in the new administrative law discourse if they were merely part of an anti-state, anti-regulation campaign mounted by neo-liberals, large corporations, the World Bank, and their allies and dupes. In fact, survey after survey reveals that people trust and respect judges more than politicians, and that bills or charters of rights are enormously popular. In other words, the new paradigm – the paradigm that displaces the paradigm of administrative law that began in the early nineteenth century – is powerful, has democratic legitimacy, and is not about to collapse in the face of evidence or argument that what it promises it cannot deliver and what it delivers is not what it promises.37 While Arthurs’s analysis of the anti-state forces and their impact on administrative law is compelling, it is not the only narrative that has been brought to bear on the rejuvenated call for the rule of law and the rights-based approach to administrative justice. For many administrative law scholars (David Mullan, among others),38 the heightened  attention to rights in administrative law reflects the need for more robust institutions of oversight and accountability in an era of centralized and muscular executive power. Civil libertarian concerns over surveillance and detentions in the name of national security, environmentalist concerns over executive manipulation of regulatory structures, and ombuds’ concerns over fairness in bureaucratic processes all reflect areas where rights are invoked in the service of keeping the executive in check. It may be unduly one-dimensional to suggest that a focus on rights protects market and propertied interests only, or that regulatory

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commitments to the public interest are necessarily more supportive of disadvantaged or marginalized segments of society. The tables would appear to be turned in the immigration context, for example, where the enhancement of executive discretion at the expense of individual rights has extended the neo-liberal project rather than curtailing it. Of course, in a broader sense, this only affirms Arthurs’s methodological project – that context always matters and the better we can understand contexts, the more we can understand the significance and implications of law and its doctrines. At the same time, far from simply applying the policy directives found in democratically validated statutes, many settings of administrative justice have become characterized by express interference on the part of the executive. It has become apparent, particularly in the federal sphere, that Cabinet views regulatory and expert p ­ ublic bodies as little more than extensions of its own policy apparatus (as in the case of the Canadian Nuclear Safety Commission, discussed below, as well as the Military Policy Complaints Com­mis­sion, Elec­ tions Canada, and Statistics Canada, just to name a few).39 In other words, the resurgence of rights may be less a reflection of hegemonic dominance by lawyers and judges and more a worry about unbridled executive discretion.40 The Supreme Court appears to have embraced this shift as well, particularly in the Doré v Barreau du Québec decision,41 extending the application of Charter values as a further layer of constraint over the exercise of executive discretion. One could credibly argue that the ascendancy of the executive branch has overshadowed the struggle between democratic and judicial poles of authority and legitimacy in Canada. The executive controls legislative agendas (particularly in the light of the relative rarity of minority governments), and ensures that parliamentary committees are more theatre than accountability. The executive branch appoints judges, decides on the budget and staffing of courts, and controls the mandates, personnel, and policy priorities of administrative decision-makers as well. In this sense, the lived reality of the administrative state is driven, as Arthurs reminds us, by power. conclusion: pluralism and the future o f   a d m i n i s t r at i v e l aw

Dicey served as Arthurs’s white whale, which he has hunted across diverse seas, lamenting the dead hand of judicial review and highlighting the political economy at work in the ideology of subjecting

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the welfare-state project to “ordinary” law enforced by “ordinary” courts. It is Arthurs’s metaphor of another whale – from the story of Jonah – however, that contains the promise of his vision of pluralism for administrative law. In this analysis, Arthurs insists that, if administrative law is to be seen to have legitimacy, it will have to adapt to and encourage new forms of dispute resolution consistent with ethnically diverse communities and legal contexts beyond the state. In short, for Arthurs, the radical potential for administrative law is not greater deference from the courts, but greater pluralism outside formal legal structures. Where does pluralism take us today? While there are as many ways to address this question as there are people to pose it,42 it leads to an examination of whether administrative justice has the necessary legitimacy and imagination to foster truly diverse and non-hierarchal forms of norm generation. The executive institutions of indigenous self-government, the densely technical work undertaken by financial service regulators, the vital democratic safeguards provided by an Access to Information or Privacy commission, and the struggle over the scope of oversight in national security activities by bodies such as the Security Intelligence Review Committee, all reflect new loci for innovation and challenge to established structures of power. It is not courts or legislatures, in other words, that have the capacity and space to engage with executive power, but the pluralist sphere of administrative justice. More often than not, the tensions and anxieties of the administrative state are playing out in struggles influenced by markets and politics, but taking place between executive entities. Consider the brouhaha around safety at the Chalk River Nuclear Reactor near Ottawa, which was one of the world’s largest producers of medical isotopes for health care diagnostics. In 2008, the Canadian Nuclear Safety Commission (c nsc ) shut down Chalk River over safety concerns, prompting a brief crisis as the government recalled Parliament in late 2007 to reverse the decision of its own independent nuclear regulator. Chalk River, in turn, was owned and operated by a Crown Corporation, Atomic Energy of Canada Ltd (ae cl ), which had had long-simmering tensions with the cn s c.43 ae cl was created as a Crown Corporation in the early post-war years (1952) of innovation for Canada’s public enterprises. But, in the late 1980s, the company was subject to privatization rumours under Brian Mulroney’s Conservative government, and, in 1991, m d s Inc., an international drug and medical research company, won a bid to buy the profitable isotope-producing arm of ae c l – and, as part of this

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deal, a ec l was compelled to provide mds with a continuous supply of medical isotopes or face significant penalties.44 In other words, while the opportunity for profit was privatized, the risks mostly remained public – another characteristic dynamic of the evolving administrative state. As the former chair of a e cl remarked in 1991, “They got a heck of a deal … They got a company who had a lock on the world markets for the isotopes, and no competition.” Thus, to understand the showdown of 2007–08 over Chalk River, it is imperative to appreciate the complex intra-executive dynamics between c n sc , a e c l , the relevant ministries, and Cabinet. That said, the showdown also cannot be understood without an appreciation of the shift in the role of the government in the nuclear industry, and the contractual constraints and risk-shifting that are shaped by neo-­ liberal and global markets. While the latter aspect of the story is vividly captured by Arthurs, the former aspects are somewhat hazy. What may be missing in some of Arthurs’s key analyses of administrative justice is a nuanced account of intra-executive dynamics and their many implications for administrative justice. As the Chalk River story illustrates, these entities may each claim ownership of particular public interest narratives, may each be resisting or captured by different constituencies and stakeholders, and may be loosely or tightly controlled by the political executive (i.e., Cabinet). These dynamics are critical, I would suggest, as the executive branch of government now stretches from line ministries to the public accountability agencies that review them, from regulators to those Crown Corporations subject to regulation, and to a broadening public sector of prisons, schools, universities, colleges, hospitals, municipalities, and utilities that now infuse the fibre of social and economic life in our society more deeply than ever before.45 Administrative justice, in all its forms, dwarfs the relatively homogenous, relatively lowvolume, and relatively inaccessible dispute resolution meted out in Canadian courts (though, as Arthurs reminds us in Without the Law, administrative justice has always been dominant in practice but subservient to courts in the ideologically constructed pyramid of legal legitimacy). Nevertheless, my reading of Arthurs is not that he seeks the primacy of the executive branch over the judiciary (or that he wishes for one tentacle of the executive branch to be in ascendance over another), but rather, that he aims for the primacy of the legislative branch and its proxy for democratically legitimate agendas of state intervention to produce more just forms of social and economic

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life. In this sense, because the executive branch is both part of the problem and the solution for more just forms of state engagement, it deserves far more attention than it has received. While legislatures and courts struggle to avoid atrophy, administrative justice broadly construed becomes ever more experimental (driven to innovate both by pressures internal to the executive branch and by those exerting force outside it). The heterogeneity of public decision-making and dispute resolution has begun to attract new and more intense scrutiny. Recent debates about the place of restorative justice in university discipline,46 mental health diversion programmes in professional regulation,47 and the ban on lawyers in online statutory tribunals48 all represent artifacts of pluralism’s potential (and perhaps its limits as well). For example, while courts are bound by specific rules of evidence (the rule against hearsay, for example, or the requirement that testimony be cross-examined), administrative justice may conceive of the “record” and legally relevant knowledge in many different ways. The YouTube videos, songs, and community and individual story-telling in the Truth and Reconciliation Com­ mission raise the intriguing question of what an administrative process would look like if we valued how people wish to capture their experience and its impact.49 But Arthurs would be quick to observe that such claims about the experimental potential of administrative justice are weakened by having so little socio-legal empirical study of administrative justice generally, and the political economy of its many forms and contexts in particular. Scholars drawn to the field of administrative law more often than not want to write about judicial review, the rule of law, and the triumph of rights. The lived experience with administrative justice, the complex forces shaping it, and the plural forms of its instantiation are more challenging dynamics to capture. Thirty-five years after “Rethinking Administrative Law,” I have suggested that it is time to revisit Arthurs’s rethink. Too few scholars have taken up the challenge to explore the lived experience of ad­ministrative justice. If administrative law is to find “the right way home,”50 as Arthurs hoped a generation ago, the new voices and fresh eyes of a new generation will need to lead the way. How they see and speak of administrative justice will owe much to Harry Arthurs’s continually unfolding analytic imagination.

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N ot es   1 Harry W. Arthurs, “Jonah and the Whale: The Appearance, Disappearance and Reappearance of Administrative Law,” University of Toronto Law Journal 30 (1980): 225, at 238.   2 Ibid., 225.   3 Harry W. Arthurs, “Rethinking Administrative Law: A Slightly Dicey Business,” Osgoode Hall Law Journal 17 (1979): 1.   4 Harry W. Arthurs, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto Press, 1985).   5 This lecture was published as H. Arthurs, “Jonah and the Whale: The Appearance, Disappearance and Reappearance of Administrative Law,” 225, at 226.   6 For further discussion of this arc of the history of deference, see Lorne Sossin and Colleen Flood, “Contextual Snakes and Ladders: Iacobucci’s Legacy and the Standard of Review in Administrative Law,” University of Toronto Law Journal 57 (2007): 581.   7 See also Peter Hogg, “The Jurisdictional Fact Doctrine in the Supreme Court of Canada: Bell v. Ontario Human Rights Commission,” Osgoode Hall Law Journal 9 (1971): 203; Peter Hogg, “Judicial Review: How Much Do We Need?” McGill Law Journal 20 (1974): 157; Paul Weiler, “The Slippery Slope of Judicial Intervention: The Supreme Court and Canadian Labour Relations 1950–1970,” Osgoode Hall Law Journal 9 (1971): 1; and J. Evans, “Developments in Administrative Law: The 1984–85 Term,” Supreme Court Law Review 8 (1986): 1, at 27–8.  8 Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (c u p e ).  9 National Corn Growers Assn. v Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at 1332. See also P. Bryden, “Justice Wilson’s Administrative Law Legacy: The National Corn Growers’ Decision and the Judicial Review of Administrative Action,” Supreme Court Law Review (2d) 41 (2008): 225. 10 National Corn Growers Assn. v Canada, 1332. 11 This principle was subsequently entrenched in Crevier v A.G. (Québec) et al., [1981] 2 S.C.R. 220, in which the Supreme Court held that no statute could purport to remove any recourse to judicial review. 12 Ibid., at para. 16. 13 Ibid. 14 See U.E.S., Local 298 v Bibeault, [1988] 2 S.C.R. 1048, and the discussion in Sossin and Flood, “Contextual Snakes and Ladders.”

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15 See Canada (Director of Investigation and Research) v Southam Inc., [1997] 1 S.C.R. 748; Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. 16 Dunsmuir v N.B., [2008] S.C.C. 9. 17 Brian Mulroney memorably stated in 1984 that, if elected, he would give public servants “pink slips and running shoes.” For discussion of the neo-liberal turn in the discourse on the public service in Canada and its connections to other global developments, see Donald Savoie, “Introducing the Topic,” in Governance in the 21st Century: Revi­ talizing Public Service, ed. B. Guy Peters and Donald Savoie (Montreal, q c , and Kingston, on : McGill-Queen’s University Press, 2000), 9. 18 See Donald Savoie, Thatcher, Reagan, Mulroney: In Search of Bureaucracy (Pittsburgh, pa : University of Pittsburgh Press, 1994), 187. 19 See Knight v Indian Head School Division No. 19, [1990] 1 S.C.R. 653. 20 See Dunsmuir, para. 91–111. 21 See “Report of the Walkerton Commission of Inquiry (2002),” http://www. archives.gov.on.ca/en/e_records/walkerton/report2/index.html, last accessed 24 July 2016. 22 Gunther Teubner, “After Legal Instrumentalism? Strategic Models of Post-Regulatory Law,” in Dilemmas of Law in the Welfare State, ed. G. Teubner (Berlin: Walter de Gruyter, 1986); and Orly Lobel, “The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought,” Minnesota Law Review 89 (2004): 342, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=723761. 23 See David Dyzenhaus, “Dancing with Dicey: A Tentative Embrace of Judicial Review,” chapter 8 in this volume. 24 [2002] S.C.C. 1. 25 See Lorne Sossin, “The Promise of Procedural Justice,” in Public Law at the McLachlin Court: The First Decade, ed. Adam A. Dodek and David A. Wright (Toronto: Irwin, 2011), 55–76. 26 See http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_ 05a11_e.htm, last accessed 24 July 2016. 27 See Laurie Monsebraatan, “Ontario Businesses Ignore Provincial Disability Law,” Toronto Star (18 November 2013), http://www.thestar. com/news/queenspark/2013/11/18/ontario_businesses_ignore_provincial_ accessibility_law.html. 28 See http://www.aodaalliance.org/strong-effective-aoda/08272014.asp, last accessed 24 July 2016. The legislative scheme provided that businesses had to file an electronic report with the government by 31 December 2012, detailing how they accommodated disabled customers, trained staff, and listened to feedback.

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29 Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act, 2005 (2015), https://www.ontario.ca/document/legislative-review-accessibility-ontarians-disabilities-act, last accessed 24 July 2016. 30 Ibid., 33. 31 For a summary of this case law, see Lorne Sossin, “Class Actions against the Crown: Or Administrative Law by Other Means?” Canadian Business Law Journal 43 (2006): 380. 32 Harry W. Arthurs, “The Administrative State Goes to Market – And Cries Wee, Wee, Wee All the Way Home,” University of Toronto Law Journal 55 (2005): 797–831. See also Harry W. Arthurs, “Governing the Canadian State: The Constitution in an Era of Globalization, Neo-Liberalism, Populism, Decentralization and Judicial Activism,” Constitutional Forum 13 (2003): 16–23. 33 Arthurs, “The Administrative State Goes to Market,” 802. 34 Ibid. 35 Ibid., 803. 36 Ibid., 826. 37 Ibid. 38 David Mullan, “Deference from Baker to Suresh and Beyond: Interpreting the Conflicting Signals,” in The Unity of Public Law, ed. David Dyzenhaus (Oxford, u k , and Portland, or: Hart Publishing, 2004), 21–60. See also Craig Forcese, “Administering Security: The Limits of Administrative Law in the National Security State,” in Administrative Law in Context, ed. Colleen Flood and Lorne Sossin (Toronto: Emond Montgomery, 2008), in chapter 2 and the literature cited therein. 39 For discussion, see Lorne Sossin, “The Puzzle of Independence for Administrative Bodies in the Common Law World: A Canadian Perspective,” in Comparative Administrative Law, ed. Susan Rose Ackerman and Peter Lindseth (Cheltenham, u k : Edward Elgar Publishing, 2010), 205–24. 40 David Dyzenhaus’ recent work on the culture of justification in Canadian administrative law serves as an example of this important, discursive turn. See David Dyzenhaus, “Dignity in Administrative Law: Judicial Deference in a Culture of Justification,” 23rd McDonald Lecture 2011 (1 October 2011), http://ssrn.com/abstract=2029818, last accessed 24 July 2016; see also chapter 8 in this volume. 41 [2012] S.C.C. 12. 42 See, in particular, the volume of the Osgoode Hall Law Journal dedicated to Harry W. Arthurs, Osgoode Hall Law Journal 44 (2006), and, in

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particular, Jeremy Webber, “Legal Pluralism and Human Agency,” Osgoode Hall Law Journal 44 (2006): 16. 43 Linda Keen was removed by Cabinet as head of the c nsc shortly after the decision of Parliament to reopen Chalk River in January of 2008 (though her security of tenure protected her from being removed as a member of the Commission entirely). See Ian Austin, “Head of Canadian Nuclear Regulator Fired,” New York Times (17 January 2008), http://www.nytimes. com/2008/01/17/business/16cnd-nuke.html?adxnnl=1&adxnnlx= 1427645533-WV8SEEJ7kWLAlsLdS3mcwA. Keen would go on to challenge her removal, which was dismissed by the Federal Court in 2009: http://reports.fja.gc.ca/eng/2009/2009fc353.html, last accessed 24 July 2016. The Chalk River facility is scheduled to close permanently in 2018. 44 See “Canada’s Nuclear Fallout,” The Globe and Mail (23 February 2008), http://www.theglobeandmail.com/news/national/canadas-nuclear-fallout/ article1351426/?page=all. 45 See Lorne Sossin, “The Ambivalence of Executive Power in Canada,” in The Executive and Public Law: Power and Accountability in Comparative Perspective, ed. Adam Tomkins and Paul Craig (Oxford, uk : Oxford University Press, 2005), 52–88. 46 The use by Dalhousie University of restorative justice techniques – many pioneered at Dalhousie’s own Schulich School of Law’s Restorative Justice Project – generated significant criticism in the context of allegations that certain male dentistry students had engaged in sexist and harassing Facebook posts in the fall of 2014; see, for example, http://globalnews.ca/ news/1759509/female-dentistry-students-feel-forced-into-dalhousiesrestorative-justice-process. 47 See Nova Scotia Barristers’ Society, “A Second Chance,” http://nsbs.org/ public-interest/2014/01/second-chance, last accessed 24 July 2016. 48 Section 20 of British Columbia’s Civil Resolution Tribunal Act says that parties must usually represent themselves at the new Civil Resolution Tribunal designed to resolve many small claims and most strata (condominium) disputes – see C. Schmidt, “Tribunal Aimed at Streamlining Deals Out Lawyers, Prompts Ire,” Lawyers Weekly (3 April 2015), http://www. lawyersweekly.ca/articles/2351. 49 See the innovative strategies employed by the Truth and Reconciliation Commission investigating Canada’s Indian Residential School experience: http://www.trc.ca, last accessed 24 July 2016. For discussion, see Lorne Sossin, “Without Facts: In Search of a Pluralist Account of Administrative Justice,” paper presented to Halbert Workshop The Scope of Judicial Review and the Dilemma of the Administrative Record in Canada and

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Israel in Comparative Perspective (Jerusalem: Hebrew University, December 2014), 17–18. 50 Arthurs, “Jonah and the Whale.”

10 Investor Rights and the Judicial Denial of Neo-Liberal Constitutionalism David Schneiderman Toronto

1 introduction

Canadians turn out to be rather hyperactive constitutionalists. At the very same time as they were preoccupied with constitutional politics via a series of proposals for constitutional reform, all the while experimenting with a newly hatched Charter of Rights and Freedoms, another species of constitutionalism was being promoted abroad. This was being achieved via a series of regional trade and investment treaties to protect foreign investors, a model to which Canada has been aggressively seeking signatories. No great Canadian values are being projected abroad, however. Instead, Canada is channelling the desires of powerful economic actors: those who are seeking to secure the success of neo-liberal legality, but on a global scale. Neo-liberal legality aims to secure for business interests the free flow of trade and capital unimpeded by state policy.1 Neo-liberal constitutionalism is merely a trumped-up version that serves similar ends, but via constitution-like forms. Should democratic processes yield results, across a range of policy fields, inconsistent with those expected of self-maximizing, rational economic actors, neo-liberal constitutionalism ensures that state policy yields to the superior logic of markets. That is, if states and citizens run afoul of the markers of tolerable behaviour, then a variety of legal norms are available to bring rogue states into line. For some time, I have been arguing that international investment treaties serve such constitution-like functions.2 They draw from and

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build upon a select set of norms commonly found in constitutional texts. Non-discrimination rights (national and most-favoured-nation treatment) and prohibitions against “regulatory takings” (nationalization and expropriation or equivalent measures) are found in almost every bilateral investment treaty (bi t ). A “fair and equitable treatment” standard has been interpreted in ways analogous to a due process clause, or a clause guaranteeing the enforceability of contracts. Each of these standards of protection has its counterpart in the national constitutional systems of capital-exporting states, principally norms associated with rights to property and to contract. This is not to say that bilateral and regional investment agreements are constitutions, precisely, only that they exhibit many features of, and perform some of the functions of, national constitutions. Not only are rights conferred in investment treaties, they are legally enforceable via investor-state dispute-settlement mechanisms. Investors have standing to pursue claims for breach of treaty standards by states before private dispute-resolution bodies typically hosted by facilities such as the International Centre for the Settlement of Investment Disputes (i c si d ) located at the World Bank. Awards can then be enforced within the defaulting state’s national system of  courts. The investment rules regime, for this reason, has been described as one of the “most effectively enforceable in the international system.”3 Investment lawyers mostly resist the linkage between national legal orders and international investment law. These legal entrepreneurs encourage the spread of treaty norms and facilitate investment treaty arbitration. They are a small coterie of practising lawyers and academics who sit on tribunals, or make arguments before them, so as to “resolve” disputes between investors and states acting as hosts to foreign investment. These lawyers prefer to conceptualize investment law as a set of discrete and autonomous non-national systems from which states are largely absent.4 Harry Arthurs, more than most, understands otherwise. Appre­ ciating that there exist multiple sites for the production of law, giving rise to a plurality of normative legal orders, he notes that economic globalization is resulting in the reconstruction of legal fields both inside and outside of states.5 “What really is our supreme law?” he asks. It turns out that the transnational legal order accompanying the spread of the global economy “impose[s] far stricter limits on Canadian governments than anything in the Constitution Acts.”6

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In which case, we should reconceive our understanding of constitutionalism to account for the constitution-like functions – or “permanent institutional framework”7 – served by the neo-liberal global legal order. As Arthurs would predict, this is a proposition that Canadian courts also resist.8 Channelling the preferences of the investment law bar, Canadian judges show a marked reluctance to consider investment law as having given rise to any significant implications for constitutional law. In this chapter, I explore the judicial reluctance to temper Canadian investment treaty policy in light of the Canadian constitution. My reflections are prompted by constitutional litigation initiated by those seeking social justice in Canadian courts. Harry Arthurs has not looked favourably upon such initiatives. Bluntly put, he would not expect such initiatives to produce outcomes that mitigate alienation and social suffering.9 Instead, he insists that we look elsewhere – in the arena called politics – for solutions to social justice problems. That the Canadian judiciary would find that international investment agreements operate in a sphere independent from national constitutional law accords well with neo-liberal worldviews. The Canadian judiciary, it seems, lacks the courage – the “constitutional courage,” in Arthurs’s terms10 – to admit that external legal regimes can have the effect of significantly transforming domestic constitutionalism. By way of illustration, I turn first to decisions of Ontario courts in cases launched by the Council of Canadians (CoC), the Canadian Union of Postal Workers (c up w), and the Charter Committee on Poverty Issues (c c p i ), all challenging the consistency of n af ta’s investment chapter (Chapter Eleven) with Canada’s constitution (Parts I and II). I take up, subsequently, decisions of the Federal Court of Canada responding to a constitutional challenge to the CanadaChina Foreign Investment Protection Agreement (f i pa) initiated by the Hupacasath First Nation (Part III). It turns out, according to these Canadian judges, that investor rights have little or no connection with constitutionalism here or abroad. 2 d i s t i n c t l e g a l sys t e m s

The first piece of constitutional litigation under consideration appears to have been a collateral attack upon a pending n af ta dispute initiated by the United Parcel Service (u p s) against the Government of Canada. Claiming a denial of national treatment, among other things,

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u ps was challenging the ability of Canada Post to subsidize its own courier delivery service. As has often been the case, the cu p w was denied standing to make written or any other submissions at the hearing (rules that have since been modified at i c s i d to make the admission of written, but not oral, submissions easier). A constitutional challenge would provide another venue for the cu p w and its likeminded allies to have their day in court, albeit in an entirely different venue and answering entirely different legal questions.11 Two levels of court addressed the constitutional questions: the Ontario Superior Court of Justice, by way of application, and the Ontario Court of Appeal. Leave to appeal to the Supreme Court of Canada was denied. All of the judges declined to scrutinize n af ta for failing to live up to constitutional standards embodied in the 1867 and 1982 Canadian Constitution Acts. The argument was that na f ta’s investment chapter ran afoul of the Canadian constitution in two principal respects. It: 1 unconstitutionally transferred jurisdiction ordinarily within the purview of Canadian superior courts (s. 96); and 2 violated the Charter by depriving Canadians of life, liberty, and security of the person, not in accordance with the principles of fundamental justice (s. 7) and equality rights (s. 15), by allowing for impugning of laws and regulations that may promote human health and security or work to the advantage of equality-seeking groups. There also were ancillary arguments about unwritten constitutional principles (the rule of law and constitutionalism) and the right to a fair hearing (Section 2(e) of the Canadian Bill of Rights) that are not addressed here. The first argument made was the strongest in what was, otherwise, not a very strong case. It concerned the arcane question of the jurisdiction of superior courts in Canada in 1867. Much of the jurisprudence in the field developed in response to provinces establishing courts and tribunals that eroded some of this original jurisdiction. The argument cleverly asked if na fta investment tribunals were performing functions “identical or analogous” to those performed by  Canadian courts.12 Professor Andrée Lajoie, in her affidavit sworn in support of the application, concluded that “exclusive and inherent jurisdiction” to determine the legality and wrongfulness of government action, including exclusive authority to decide matters

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concerning expropriation, fell within the jurisdiction of superior courts at the time of Confederation.13 Justice Pepall’s ruling in the first instance rejected outright the Section 96 claim. In Canada’s constitutional system, treaties are executed by the executive branch and implemented by the legislature with the requisite authority. For this reason, n af ta , she concluded, is “not part of Canada’s domestic law” and so did not attract the application of Section 96.14 Nor could it be said that Section 96 jurisdiction had been transferred to na f ta investment tribunals. “International law and domestic law are distinct legal systems that operate in different spheres.”15 The crux of the problem is that Pepall did not want to tie the hands of the executive when it enters into these binding treaty commitments: “if I were to accede to the Applicant’s submissions,” she acknowledged, “Canada would be constrained by its domestic laws from entering into an international agreement.”16 What about the Charter arguments? Here, again, the trial judge would not proceed down the path suggested by the applicants. There only were a few na f ta claims against Canada on the record, which she considered “inadequate” to render a decision of the sort requested.17 The applicants, she claimed, failed to show how Charter rights “were infringed in any of the tribunal decisions” or that those decisions “affected” any Charter rights.18 n a f ta tribunals, Pepall J. noted, have “no authority to change” Canadian law, nor does investment arbitration “affect or determine the rights of Canadians.”19 On appeal, Justice Goudge, writing for a unanimous Court of Appeal, affirmed the application judge’s ruling. n af ta’s investorstate arbitration process is not, he held, incorporated into Canadian domestic law, only the “decision” that it renders.20 Nor are n af ta tribunals analogous to superior courts in 1867. “We have been shown nothing,” Goudge J.A. declared, “that suggests that there were any domestic causes of action known to superior courts at the time of Confederation that could be said to be broadly analogous to these international obligations” such as those affording national treatment to foreign investors.21 It probably is correct to say that, under national law, legislatures could discriminate against foreign-owned wealth with impunity. There was one “arguable exception,” Goudge J.A. admitted, and it concerned expropriations. Even here, however, the n a fta scheme was “animated” by different principles. It is not “designed to regulate the government taking of domestic private property” but to facilitate private investment flows. This was a

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sufficient distinction to characterize as “novel” the jurisdiction of n a fta tribunals from superior court jurisdiction.22 The Charter argument was swiftly dispatched in a single paragraph: it concerned “mere speculation of harm” and so was “premature.”23 3 o p e r at i n g i n d i f f e r e n t s p h e r e s

Much is clarified by the argument of the Charter Committee on Poverty Issues (c c p i ) subsequent to the Ontario Court of Appeal decision. The c c p i took carriage of the application for leave to appeal to the Supreme Court of Canada, abandoning the Section 96 argument while maintaining that the Charter argument had some force. The c c p i claimed, however, that the Courts below had misconceived the Charter argument. The claim was not that n af ta tribunals should be expected to apply the law of the Charter, but that executive action should be expected to comply with the Charter. Treaties, in other words, should be expected to conform to the Charter’s strictures.24 Just as the German Constitutional Court strictly scrutinizes delegation of authority to the European Union,25 so should Canadian courts supervise executive treaty-making to ensure constitutional conformity. This was an attempt, then, at domesticating international investment law. Executive authority in the realm of foreign affairs is a holdover from eighteenth-century royal “prerogative.” The prerogative is the realm of unfettered discretion originally held by the sovereign personally. It was given expression in Section 32 of the 1867 Act by conferring power to the federal government to implement treaties entered into by the “Imperial Parliament.” Shortly after 1867, Canada began insisting on representation in treaty negotiation, and slowly assumed this function that had formerly been exercised by the British Crown on its behalf.26 Whatever residue of Crown prerogative remains, it will have been assumed (in both Britain and Canada) by the executive branch. Many of the prerogatives have been whittled down by Parliament by express legislation. Only a few remain, and they include discretion in the conduct of foreign relations. Though the Supreme Court of Canada early on declared that the executive branch is subject to Charter disciplines, and has, on occasion, issued remedies directing the executive to take certain actions, there remains some reluctance to tread on that branch’s toes.27 It is striking, however, that the judges did not speak in terms of the separation of powers. They were not so preoccupied with conserving

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executive discretion as with steering clear of a legal field viewed as novel and alien. This suggests that they really did swallow whole the description of international law and constitutional law as two distinct, non-overlapping, and autonomous systems. They were lent a hand in this endeavour by the evidence of James Crawford, Whewell Professor of International Law at the University of Cambridge and a leading investment arbitrator, who swore an affidavit on behalf of the Government of Canada. Crawford’s affidavit was meant to join issue with points made by Professor Muthucumaraswamy Sornarajah, C.J. Koh Professor at the Faculty of Law of the National University of Singapore and one of the world’s foremost critics of investment arbitration, who offered expert evidence in support of the applicants.28 Professor Crawford opined that n af ta and other investment treaties do not deprive states of “their regulatory powers over the economy and the environment” (para. 33). Should the government run afoul of a treaty stricture, such as the one concerning regulatory takings, they can adopt this measure so long as they compensate the investor. By way of example, he took up the claim of the Virginiabased Metalclad Corporation against Mexico.29 Metalclad claimed that Mexico had expropriated its investment by impeding the opening of a hazardous waste facility site formerly shut down for leaching chemicals into the local water supply. Among other actions, the municipality refused to grant the requisite construction permits while the governor issued an ecological decree barring developments threatening a rare species of cactus in the vicinity of the site. No government action was forestalled, Crawford observes: “it is not true that Mexico’s concerns were ultimately overridden.”30 Instead, Mexico got its way and the investor was compensated for its losses. For this reason, Professor Crawford characterized as “overstated, if not greatly misconceived” the argument that n af ta is part of a “new international constitutional order.”31 Yet, he describes precisely how constitutional rules, such as the fifth and fourteenth amendments, operate – takings are not outright prohibited, they only require the provision of “just compensation.”32 The “applicable law” provision in investment treaties, Professor Crawford maintained, served to underscore the autonomy of these distinct systems. Investment tribunals under n af ta apply treaty and international law, not the internal law of national states.33 “In fact,” Professor Crawford adds in a footnote, “n af ta tribunals have resisted the application of US constitutional principles in favour of formulations based on customary international law.”34 Even leaving

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aside the hegemony of US constitutional practice in this field, the Pope & Talbot tribunal, early on, had recourse to the American Law Institute’s Third Restatement of the Foreign Relations Law of the United States, which mirrors US constitutional practice to fill in the meaning of na f ta’s takings rule.35 Professor Crawford claimed that there “is no evidence that Chapter Eleven awards are constituting, so to speak, a clog on the equity of legislative action in the public interest.”36 In my own research, I have documented how na f ta’s takings rule may have deterred the House of Commons from mandating the plain packaging of cigarettes sold in Canada after lawyers for big American tobacco companies threatened to sue under na f ta for hundreds of millions of dollars. There likely was a similar chilling effect in operation in New Brunswick, when Premier Bernard Lord abandoned a public auto-insurance scheme despite the recommendation of an all-party committee of the legislature to proceed.37 There may be many other such instances, not yet well documented, in Canada and in other parts of the world. 4 i n t h e r e a l m o f t h e s p e c u l at i v e

A similarly futile attempt at halting the spread of investment treaty disciplines via Canadian constitutional norms was sought by the Hupacasath First Nation. On this occasion, the “duty to consult” was invoked, a constitutional obligation to accommodate Aboriginal interests when government action is likely to harm an unresolved Aboriginal rights claim. As Sonia Lawrence and Patrick Macklem explain, the duty to consult arises “as a prelude to a potential infringement of an Aboriginal or treaty right” and before a court has made a final determination about Aboriginal right.38 The Hupacasath sought to enjoin the government of Canada’s ability to enter into a foreign investor protection agreement with the People’s Republic of China without first consulting with, and accommodating the pending Aboriginal rights claim of, the Hupacasath.39 The Hupacasath First Nation argued, among other things, that obligations owed to Chinese investors arising under the treaty would limit the “reasonable accommodation” of Aboriginal claimants in cases of a breach of the duty to consult. This is because it would be reasonable for government to take into account the concerns of disgruntled foreign investors when fashioning a measure of Aboriginal accommodation in response to fulfilling the duty to consult. What is reasonable, in other words,

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would be shaped by investment law disciplines. Canada likely would prefer not to antagonize too greatly the interests of foreign investors, even Chinese ones, and Canadian courts likely would condone this sort of solicitude. The Justices of the Supreme Court of Canada have indicated that they do not want to construct an edifice of constitutional rights that acts as a bar to the efficient economic exploitation of natural resources that lie within First Nations lands. They have been inclined to weigh Aboriginal constitutional rights against the non-constitutional interests of resource developers in areas such as “agriculture, forestry, mining, and hydroelectric power.”40 The odds were not so great that the Hupacasath would receive a sympathetic hearing from the Canadian judiciary. Christopher Thomas, a prominent Canadian investment lawyer and arbitrator, tendered an expert opinion on behalf of the government in reply to the expert opinion supplied by Professor Gus Van Harten of Osgoode Hall Law School. Thomas opined that the Canada-China f i pa “does not purport to change the allocation or distribution of government powers” and that the “allocation or distribution of the totality of powers of the Canadian State … made under or pursuant to the Constitution Act, remains unchanged.”41 The treaty, he declares, has no “supra-national effect” – it “does not supplant Canadian law, which remains fully in effect.”42 Instead, the treaty operates as do all other investment treaty commitments which Canada has entered into, including n af ta’s Chapter Eleven. The treaties, moreover, are unlikely to give rise to a limitation of Aboriginal rights. Though “one cannot categorically rule out the possibility of a claim in the future … the na f ta experience does not suggest a substantial probability of a spate of claims based on measures based on aboriginal rights or interests.”43 Thomas’s opinion is carefully framed – the Canada-China f i pa does not “purport” to limit governmental power, it operates in the same way as do other international treaties, and is continually evolving and improving. Unsurprisingly, the Chief Justice of the Federal Court, Paul Crampton, dismissed the Hupacasath application. The Chief Justice accepted the government’s submission that the alleged adverse impact of the Canada-China f i pa on the Hupacasath was “speculative, remote and non-appreciable.”44 There was no evidence of actual or prospective Chinese investment in lands on or near those claimed by the Hupacasath.45 There was no scenario that the Chief Justice could contemplate in which the Hupacasath would run afoul of investment

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treaty disciplines obligations or in which an investment tribunal would not fully take these into account in its deliberations.46 When asked to reach the same conclusion, as had Ontario courts in the c u pw case, regarding the constitutional insignificance of investment treaty arbitration, Crampton C.J., to his credit, would not rule out the possibility that investment law “may trigger” the constitutional duty to consult. This was because of the lower evidentiary requirement to trigger the duty to consult: a non-speculative and appreciable impact on an unresolved, but pending, Aboriginal right.47 Nevertheless, on every other substantive question, the judge preferred Thomas’s evidence. He accepted Thomas’s opinion that the minimum standard of treatment under international law is a “very low procedural ‘baseline.’”48 Though this may be Canada’s desired interpretation, few tribunals have followed suit. Indeed, the Glamis Gold tribunal, upon which Thomas relies throughout, while declaring that na f ta’s international minimum standard “is an absolute minimum, a floor below which the international community will not condone conduct,” considers the standard as having evolved beyond that baseline to include the modern doctrine of legitimate expectations.49 The expert opinion obfuscates this and similar developments within investment treaty arbitration. Weighing in on the effect of investment disciplines on available policy space, Crampton C.J. declares that there is “no evidence that any sub-national governments in Canada have been fettered or ‘chilled’ by na f ta or the 24 f i pa s in force, from regulation in the public interest.”50 Professor Van Harten did not speak precisely to regulatory chill, and instead emphasized the vast array of policy areas within federal, provincial, and Aboriginal law-making authority that fall within investment treaty disciplines. I have mentioned above a couple of episodes that suggest otherwise: that regulatory chill has played a role in Canadian law. The hasty dismissal of this aspect of the claim seems crude – investment treaties are meant, after all, to hamper policy space. The Federal Court of Appeal dismissed an appeal by the Hupacasath. Deference was owed to findings of fact made by the lower court, and, in any event, wrote Justice Stratas for the Court, “I would have made the same factual findings.”51 There was no causal link between the claimed adverse impact on Hupacasath Aboriginal rights and signing the Canada-China f i pa . This was entirely “speculative,” having resort only to “assumptions, conjectures and guesswork.”52 According

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to this logic, wrote Stratas J., virtually any government action would trigger the duty to consult, losing sight of the special legal rights conferred on foreign investors that are not available to Canadians in respect of Canadian government action. The Federal Court of Appeal, it appears, would not have departed from an important finding made by Chief Justice Crampton. He had accepted the government’s claim that, as Professor Van Harten was an outspoken critic of the Canada-China f i pa, his expert evidence was to be discounted.53 The Chief Justice agreed, characterizing Van Harten’s evidence as “baldly stated and unsubstantiated.” Instead, the judge preferred Mr Thomas’s evidence, which he described as “more neutral, factually rigorous and persuasive.”54 This is despite the fact that Van Harten has authored two important books on the subject, the most recent being a sophisticated empirical study of outcomes in investment arbitration.55 Van Harten admits that he has a “policy of not taking paid work as a counsel, arbitrator, or expert in investment treaty arbitration” and has, over the years, declined invitations to so act.56 Thomas, by contrast, makes no secret of the fact that he makes a living as a member of the club of investment lawyers and arbitrators. That Chief Justice Crampton would prefer the evidence of an investment lawyer and arbitrator comes as less of a surprise when one learns that, prior to his appointment to the Federal Court by the Conservative government in 2009 and then promotion to Chief Justice in 2011, Paul Crampton was a competition lawyer in private practice who promoted policies congenial to the position taken by the Government of Canada in the Hupacasath litigation.57 In an editorial published in The Globe and Mail in 2008, Crampton declared Canada’s law and policy on the foreign investment entry “outdated” and “protectionist,” calling for a “market-oriented system” that did not “erect fences that shield local market participants from global competitors.”58 By calling for the removal of restrictions on the movement of capital across borders, lawyer Crampton’s pre-­ appointment position was largely in accord with the norms and values promoted by the investment law regime. Not suprisingly, then, the Chief Justice preferred the evidence of a lawyer whose values he shared while discounting the opinion of someone who represented opposing values. He preferred, in other words, the evidence of one who had an interest in the maintenance and spread of the legal regime that protects foreign investors, and, thereby, indirectly in the

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government’s success in this case, over that of an engaged academic who had, almost single-handedly, raised the public profile of the Canada-China f i pa . 5 conclusion

These outcomes would come as no surprise to Harry Arthurs. Global legal entrepreneurs continue to have great success in naturalizing “existing relations of subordination.”59 Having privileged access to the corridors of governmental power, they have a hand in the construction of what Arthurs calls Canada’s “real constitution.”60 It is one that impedes progressive social change and hands over responsibility for labour and social policy to ministries of finance, to departments of foreign affairs, and to their delegates in international financial institutions. Courts are left to operate in the interstices of the policy universe, adjudicating claims by the privileged and underprivileged. The latter are the more likely to be seeking outcomes in tension with the dominant orthodoxy and so less likely to succeed. As Arthurs would predict, Canadian courts turn out to be unreliable stewards of progressive change and overall lousy places to engage in resistance. The age of economic globalization has been described as one that has pluralized sources of authority and locales for adjudication. This is a pluralization that Arthurs, in other contexts, has looked upon positively.61 Today, Arthurs acknowledges that the rise of juridical institutions that police neo-liberal legality is a less than positive development. It prevents “activist legislatures or administrations from pursuing labour and social policies that impede the free flow of trade or otherwise prejudice business interests.”62 Might it be that the strategy that progressive forces pursued in these cases, though unlikely to succeed, was one of the few available to them? Even if courts were not inclined to rule in their favour,63 might it make sense to restore authority to places that have been diminished by the logic of neo-liberal constitutionalism? What this suggests is that a viable strategy of resistance is to pry open spaces, even adopting litigation strategies, in which pressure can be mobilized and a viable politics pursued elsewhere. From this angle, it is incumbent upon progressive forces to find platforms from which more ambitious democratic projects can be launched.64 In which case, it might be the first order of business for progressives to

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undo the binding constraints of neo-liberal constitutionalism, both at home and abroad, so that we can think anew about alternative and more democratic futures together.65 No te s   1 Harry W. Arthurs, “Labour and the ‘Real Constitution,’” Les Cahiers de Droit 48 (2007): 43, at 63. This is not to claim that there is a unity to neoliberal thought. It is, rather, a messy and incoherent assemblage of ideas. See Jamie Peck, Constructions of Neoliberal Reason (Oxford, uk : Oxford University Press, 2010).   2 See, for example, David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise (Cambridge: Cambridge University Press, 2008).   3 José E. Alvarez, “The Public International Law Regime Governing International Investment,” Recueil des Cours 433 (2009): 193, at 565.   4 See, for example, Thomas Wälde, “The Specific Nature of Investment Arbitration,” in New Aspects of International Investment Law, ed. Philippe Kahn and Thomas Wälde (Leiden, Netherlands: Martinus Nijhoff Publishers, 2007), 118; and The Honourable Charles N. Brower and Sadie Blanchard, “What’s in a Meme? The Truth about InvestorState Arbitration: Why It Need Not, and Must Not, Be Repossessed by States,” Columbia Journal of Transnational Law 52 (2014): 689.   5 Harry W. Arthurs, “The Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields,” Canadian Journal of Law and Society 12 (1997): 219, at 222, 226; see also Peer Zumbansen, “Transnational Legal Pluralism,” Transnational Legal Theory 1 (2010): 141.   6 Harry W. Arthurs, “Constitutional Courage,” McGill Law Journal 49 (2003): 1, at 7.   7 Harry W. Arthurs, “Labour Law without the State,” University of Toronto Law Journal 46 (1996): 1, at 26; see also Ricardo Grinspun and Robert Kreklewich, “Consolidating Neoliberal Reforms: ‘Free Trade’ as Conditioning Framework,” Studies in Political Economy 43 (1994): 33.   8 Harry W. Arthurs, “Governing the Canadian State: The Constitution in an Era of Globalization, Neo-Liberalism, Populism, Decentralization and Judicial Activism,” Constitutional Forum 12 (2003): 16.   9 On the utility of constitutional litigation, see Harry W. Arthurs, “‘The Right to Golf’: Reflections on the Future of Workers, Unions and the Rest of Us under the Charter,” Queen’s Law Journal 13 (1988): 17; Arthurs, “Labour and the ‘Real Constitution,’” 63; Harry W. Arthurs, “‘The

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‘Majestic Equality’ of the Law: Why Constitutional Strategies Do Not Produce Equality” (12 June 2014), http://digitalcommons.osgoode.yorku. ca/cgi/viewcontent.cgi?article=1070&context=all_papers, last accessed 24 July 2016. 10 Arthurs, “Constitutional Courage.” 11 ups subsequently lost the dispute. See United Parcel Service of America Inc. v Canada (Award and separate opinion), Ad hoc – unc itr a l Arbitration Rules (24 May 2007). 12 Re Residential Tenancies Act, [1981] 1 S.C.R. 714. 13 Affidavit of Andrée Lajoie, dated 14 May 2003 in Ontario Superior Court of Justice, Court File No. 01-CV-208141 at Section 10. Additional affidavits, from Professor of Law M. Sornarajah of National University of Singapore and Professor of Political Economy Stephen Clarkson of the University of Toronto, described n afta’s regime of foreign investment protection, highlighting its radical departure from past international practice and its constitution-like features. All of these affidavits are available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/ topics-domaines/disp-diff/cupw.aspx?lang=eng, last accessed 11 January 2015. 14 Council of Canadians et al. v Canada (Attorney General), [2005] canlii 28426 (Ontario Superior Court of Justice) at Section 37. 15 Ibid., Section 41. 16 Ibid., Section 43. 17 Ibid., Section 63. 18 Ibid., Section 64. 19 Ibid., Section 65. 20 Council of Canadians et al. v Canada (Attorney General), [2006] canlii 40222 (Ontario Court of Appeal), Section 25. 21 Ibid., Section 39. 22 Ibid., Section 40. 23 Ibid., Section 59. 24 Application for Leave to Appeal in Bruce Porter on his own behalf and on behalf of all Members of the Charter Committee on Poverty Issues v The Queen, dated 19 January 2007, Section 26, http://www.povertyissues.org/ documents/CCPI%20NAFTA%20SCC%20%20Leave%20Application. pdf, last accessed 11 January 2015. 25 In Solange I (German Constitutional Court, BVerfGE 37, 271 [1974]) and Solange II (German Constitutional Court, BVerfGE 73, 378 [1986]). See also Bruce Porter, Section 30.

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26 See Edward Porritt, The Fiscal and Diplomatic Freedom of the British Overseas Dominions (Oxford, u k: Clarendon Press, 1992), 193, 195. 27 Compare Khadr v Canada (Prime Minister), [2010] 1 S.C.R. 44 with Burns v United States, [2001] 1 S.C.R. 283. 28 Though I resisted being drawn into this litigation initially, I reluctantly joined in only after reading Professor Crawford’s affidavit, and so swore an affidavit in response to Crawford’s. What follows draws on some of the points made in my affidavit. See “Affidavit of James Crawford,” dated 15 July 2004 in Ontario Superior Court of Justice, Court File No. 01-C V 208141 (hereinafter “Crawford Affidavit”), and “Affidavit of David Schneiderman,” dated 17 September 2004 in Ontario Superior Court of Justice, Court File No. 01-CV-208141, both available at http://www. international.gc.ca/trade-agreements-accords-commerciaux/topicsdomaines/disp-diff  upw.aspx?lang=eng, last accessed 11 January 2015. 29 Metalclad Corporation v the United Mexican States, (2001) ic sid Case No A R B (A F)   / 97 / 1, 13 World Trade and Arbitration Materials 47. See the discussion of the dispute in Schneiderman, Constitutionalizing Economic Globalization, 82–6. 30 Crawford Affidavit, para. 32. 31 Ibid., para. 40. 32 See the discussion in David A. Dana and Thomas W. Merrill, Property: Takings (New York: Foundation Press, 2002), 163–4. 33 Crawford Affidavit, para. 5. 34 Ibid., para. 44, fn. 46. 35 Pope & Talbot Inc v Canada, Interim Award, Ad hoc – unc itr a l Arbitration Rules (2000); American Law Institute, Restatement of the Law Third, The Foreign Relations of the United States, vol. 2 (St. Paul: The American Law Institute, 1987), para. 712, comment (g). On the influence of US law in this field, see, generally, Schneiderman, Constitutiona­ lizing Economic Globalization. 36 Crawford Affidavit, para. 34. 37 For the first, see Schneiderman, Constitutionalizing Economic Globa­ lization, 120–9; for the second, see Steven Shrybman and Scott Sinclair, “Public Auto Insurance and Trade Treaties” (2001) 5:1 Briefing Papers, http://www.policyalternatives / documents / National_Office_Pubs / breif5-1. pdf, last accessed 10 July 2009. 38 Sonia Lawrence and Patrick Macklem, “From Consultation to Reconci­ liation: Aboriginal Rights and the Crown’s Duty to Consult,” The Cana­ dian Bar Review 79 (2000): 252, at 255. For judicial exposition, see Haida

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Nation v B.C. (Minister of Forests), [2004] 3 S.C.R. 511; Rio Tinto Alcan Inc. v Carrier Sekami Tribal Council, [2010] 2 S.C.R. 650; Tsilhqot’in Nation v B.C., [2014] S.C.J. No. 44. 39 Former Assembly of First Nations Grand Chief Ovide Mercerdi made this same argument in response to the proposed Multilateral Agreement on Investment (m a i ) in the late 1990s. See Ovide Mercredi, “The ma i and First Nations,” in Dismantling Democracy: The Multilateral Agreement and Its Impact, ed. Andrew Jackson and Matthew Sanger (Toronto: Lorimer, 1998), 63, at 69. 40 Delgamuukw v British Columbia, [1997] 3 S.C.R. 1010, para. 165. 41 “Affidavit of Christopher Thomas,” dated 13 March 2013 in Federal Court File No. T-153-13, para. 22, http://www.italaw.com/sites/default/ files/treaty-interpretations/italaw3231.pdf, last accessed 11 January 2015 (hereinafter “Thomas Affidavit”). 42 Ibid., para. 23 (emphasis in original), 24. 43 Ibid., para. 30. 44 Hupacasath First Nation v Canada, [2013] F.C. 900 canlii, para. 59 (hereinafter “Hupacasath First Nation I”). 45 Ibid., para. 133(e). 46 The decision in Glamis Gold Ltd. v United States, Award, Ad hoc – uncitral Arbitration Rules (2009) was offered by Thomas as an exemplar of how “societal” (in this case, Aboriginal) interests are “taken into consideration” by investment tribunals. See Thomas Affidavit, para. 31, 199–204. 47 Hupacasath First Nation I, para. 68. 48 Ibid., para. 95. 49 Glamis Gold, para. 619, 621; also Mondev International Ltd. v United States, Award, i c s i d Case No ARB(AF)  / 99 / 2 (11 October 2002). 50 Hupacasath First Nation I, para. 133(d). 51 Hupacasath First Nation v Canada, [2015] F.C.A. 4, para. 77, 78 (hereinafter Hupacasath First Nation II). 52 Ibid., para. 118. 53 “Memorandum of Fact and Law of the Respondent, Minister of Foreign Affairs Canada,” dated 15 May 2013 in Federal Court File No. T-153-13, para. 154, http://www.international.gc.ca/trade-agreements-accordscommerciaux/assets/pdfs/disp-diff/ccfipa-03.pdf, last accessed 11 January 2015. 54 Hupacasath First Nation I, para. 38, 43. 55 Gus Van Harten, Investment Treaty Arbitration and Public Law (Oxford, uk : Oxford University Press, 2007); Van Harten, Sovereign Choices and Sovereign Constraints (Oxford, u k: Oxford University Press, 2013).

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56 In Bourdieu’s words, this is “scholarship with commitment.” See “Affidavit of Gus Van Harten,” dated 13 February 2013, in Federal Court File No.T-153-13, para. 22, http://www.italaw.com/sites/default/files/treaty-­ interpretations/italaw3214.pdf, last accessed 11 January 2015; and Pierre Bourdieu, Firing Back: Against the Tyranny of the Market 2, trans. Loïc Wacquant (New York: The New Press, 2003), 17. 57 I am grateful to Gus Van Harten for sharing this information. It is documented in Professor Van Harten’s complaint to the Canadian Judicial Council dated 24 September 2014. 58 Paul Crompton, “A Critical Step Forward,” The Globe and Mail (2 July 2008). 59 Harry W. Arthurs, “Making Bricks without Straw: The Creation of a Transnational Labour Regime,” in Critical Legal Perspectives on Global Governance: Liber Amicorum David M. Trubek, ed. Gráinne de Búrca, Claire Kilpatrick, and Joanne Scott (Oxford, u k , and Portland, or : Hart Publishing, 2014), 129, at 140. 60 Arthurs, “Labour and the ‘Real Constitution,’” 62. 61 Harry W. Arthurs, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto Press, 1985). 62 Arthurs, “Labour and the ‘Real Constitution,’” 63. 63 On the few occasions where courts have done so, as in some recent Charter decisions on freedom of association rights, judges move modestly. Arthurs describes such outcomes as likely to be “dysfunctional or at least sub-optimal,” in his “Constitutionalizing the Right of Workers to Organize, Bargain and Strike: The Sight of One Shoulder Shrugging,” Canadian Labour and Employment Law Journal 15 (2010): 373, at 382. For the latest such restatement on s. 2(d), see Saskatchewan Federation of Labour v Saskatchewan, [2015] S.C.C. 4. 64 Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (New York: Zone Books, 2015), 18. 65 On reclaiming authority given up to transnational legal institutions as a means of critical resistance, see David Schneiderman, Resisting Economic Globalization: Critical Theory and International Investment Law (Basingstoke, u k : Palgrave Macmillan, 2013).

pa r t i v

The Tree of Knowledge – The Axe of Power

11 “Imagination, Determination and Passion”: A Heroic Agenda for Legal Education Robert W. Gordon Stanford

1 introduction

I can’t recall when I first met Harry Arthurs. It must have been sometime in the 1980s, because I’m reasonably sure we must have met before I reviewed his masterful book on alternatives to common-law courts in nineteenth-century England, Without the Law,1 for the Osgoode Hall Law Journal.2 Anyway, I first became aware of his existence and importance upon reading Law and Learning (1983), the extraordinary report on legal education to the Social Sciences and Humanities Research Council of Canada, of which Arthurs was the principal author.3 As a collector – yes, it is rather an eccentric taste – of the generally dismal genre of reports on legal education, I recognized at once that Law and Learning was something really exceptional. It sparkled with clarity and intelligence. And, unlike most such exercises, it did not take for granted that the primary and perhaps only mission of law schools was to train students for professional practice, with room for arguments about how best to accomplish this aim. Arthurs’s vision of legal education, both as it is and as it should be, is a mostly missing but nonetheless indispensable voice in the current debates over the future of law schools. Most would-be reformers of legal education want the law schools to give more attention to preparing graduates for their first practice job. Harry Arthurs wants the

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law schools to do more to encourage and equip graduates to defend the rule of law, and humane and democratic values, and to promote the capacity of states to provide a decent life for their citizens, against the pulverizing tendencies of globalization and neo-liberal policy. 2 c u r r e n t d e b at e s o n l e g a l e d u c at i o n

Not ordinarily a subject that arouses popular passion or even mild curiosity, legal education is suddenly all over the news. The reason, of course, is the backlash from the convulsion in the markets for lawyers’ services. After a period of rapid expansion peaking in 2004–07, the market suffered a sharp downturn after the recession of 2008: 64.4 per cent graduates of US law schools in 2013 found jobs which required them to pass the bar exam, down from 74.7 per cent in 2008. Although the job market is recovering somewhat, most ob­­ servers think the long-term prospects for legal employment are very uncertain, for structural, rather than cyclical, reasons. In what had been the fastest-growing segment of big-firm practice, much routine work such as document review that used to be done by associates paid $160,000 a year or more is being lost to much lower-paid l­ awyers or paralegals in India and to new technologies such as e-­discovery. In the other “hemisphere” of solo and small-firm practice for individual and small-business clients, lawyers are losing ground to competition from franchises offering discounted standardized forms and expert software programmes. Widely quoted books with titles such as The End of Lawyers?, The Vanishing American Lawyer, or The Lawyer Bubble predict that outside a few elevated precincts of specialized “bespoke” work on behalf of high-end corporate clients, such as mergers-and-acquisitions, large debt-financing deals, public offerings of stock, bankruptcy reorganizations, complex international transactions, and major litigation, most of today’s lawyers’ business will be commoditized routine. In the gathering gloom of such prophecies, it is no wonder that young people who once might have thought of going to law school in the hope of joining a profitable profession, realizing a dream of fighting for social justice, pleasing their parents by finding a respectable middle-class occupation, or just because they couldn’t think of anything better to do, are looking at the prospect of accumulating $200,000 or more of law-school debt – often on top of four years of college debt – that they have an excellent chance of never being able

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to repay, even if they do find a legal job. (These are US numbers assuming $50,000 yearly tuition at private – and, increasingly now, also at many public – law schools. Canadian law schools remain a much better bargain, although Toronto’s tuition is now over $30,000 a year; and everywhere government funding can be expected to decline.) US law school applications declined by an astonishing 37 per cent between 2010 and 2014. Any investment that costs so much and promises such uncertain rewards is bound to prompt critics to question what sort of value it delivers. And the questions have been coming thick and fast. Some critics target patently inexcusable behaviour: law-school deans who lie to prospective students about their graduates’ employment numbers; who fund enormous salaries for themselves and their circle of cronies out of tuition increases financed by students who take out government-­ guaranteed loans; who covertly reassign scholarship money meant for needy students to more affluent ones with higher grades and l sat scores; and who ensure that their revenues keep flowing even in this age of declining applications by admitting students whose test scores reliably predict that they will never pass a bar exam. Others point to the pernicious law school ranking systems of US News, which (along with a ba requirements) tend to reward expenditures-per-student over experimentation and diversity, and create perverse incentives to game the numbers. More sweeping critics have revived longstanding questions about the viability of the US-Canadian model that requires seven years of higher education for entry to the legal profession. Some have recommended shortening it by at least one year and maybe two, and have proposed the licensing of new sub-professions to perform relatively routine legal tasks, which would enable a much shorter and cheaper course of training.4 And, of course, many of the critics have also raised serious questions about the utility, for law students, for the profession, and for society at large, of the current models of teaching and research. Several bar committees in the United States and Canada have called for law schools to return to teaching basic common law doctrine – while others want us to teach less doctrine and “legal analysis,” and more “legal skills” through “experiential learning.” Practitioners want more “practice-ready” graduates – some to relieve big law firms of training and mentoring tasks that their clients no longer wish to pay for, others to be prepared to “hang out a shingle” and undertake solo practice, still others to be prepared for jobs as managers of

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paralegal personnel and technological inputs into litigation, or of routine-transaction legal form production such as LegalZoom. I think it fair to say that most proponents of these more vocational models for legal education favour a reallocation of school resources, faculty time, and talents away from research and scholarship; would prefer that more of that scholarship spoke to practitioner – rather than academic – audiences, or just generally were more “practical” than “theoretical”; and, in some cases, would just as soon see whatever pieces of the academic enterprise that do not appear ­immediately useful to practitioners (or, sometimes, judges) disappear altogether. No less a personage than the Chief Justice of the United States has advertised his belief that legal scholarship is mostly useless – though he does rather undermine his credibility on this subject by confessing that he hasn’t read any of it in years. 3 arthurs’s distinctive contributions to   l e g a l e d u c at i o n

Harry Arthurs has long been a consistent and clear voice on the other side of this debate. His first major intervention, in the report on Law and Learning, turned out to be both prophetic and pathbreaking. Credit for wresting control of legal education in Canada from the law societies and relocating it in the universities is usually given to important pioneers such as J.D. Falconbridge, dean of Osgoode Hall in the 1930s, and to the triumvirate of Cecil (“Caesar”) Wright, Bora Laskin, and John Willis, who resigned from Osgoode (then operated by the Law Society of Upper Canada) in protest against continued Law Society control in 1949, to join the new venture at the University of Toronto, where Wright became dean.5 All three had done graduate training at Harvard Law School and thought something like it was the right model for Canada. (The Law Society, finding itself unable to handle the floodtide of new post-war aspirants to the profession, ultimately yielded control to the universities in 1957.) But Wright’s Toronto was conservative in its own way – like Harvard in the 1930s and 1950s, it was a dominantly pre-professional school focusing on doctrinal teaching and scholarship. Most other Canadian schools followed the same pattern, which persisted through the 1960s and 1970s. Law and Learning, appearing in 1983, delivered a rude shock to this prevailing model of legal education. In the law faculties, the report was greeted with frozen hostility.6

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No wonder. Arthurs wrote that much of what went on in law schools was neither practical nor academic. Both teaching and research were focused on the study and analysis of legal doctrine. Orthodox law teaching did not, and could not, provide craft training for much of practice, because law-as-practised consists of many different specialities, whose details are best learned on the job, including novice training in clinics and apprenticeships. The schools therefore taught a loose generalist set of skills, “thinking like a lawyer,” whose actual relation to practice was untheorized and unresearched. Arthurs did not disparage the mission of professional training. But he thought that it tended to overwhelm other and equally compelling tasks for legal education, forming “humane” as well as technically skilled professionals, and developing a research agenda to attain a broad and critical understanding of how legal rules and policies and their application in professional practices function in social life. His humaneprofessional law students would learn something about the social effects of rules, about how those rules came to be, about possible competing regimes or institutions to apply them, and about ethical challenges of different kinds of practice such as those that create incentives for amoral conduct. The academic research agenda would equip law faculties for empirical investigation and critical examination of the legal-social world. Law schools, Arthurs thought, did some of these things already, but in the form of incidental asides in the teaching of the main subjects and in a large miscellany of eclectic small-course-or-seminar offerings in the first year. Actual research, apart from library research into case law, was rare. His aim was the production of a corps of practising lawyers with the flexibility to innovate and creatively adapt to change, and to help critique and reform the existing system; and a cadre of lawyers and law teachers with the academic equipment to take a broad view of the legal system and to assist in policy development. Arthurs’s chosen vehicle for introducing such changes in law-teaching was to open the law schools to more integration with other university faculties – in short, to interdisciplinary studies.7 Now, of course, much of the kind of change in law schools that Arthurs called for has come to pass – not so much, as he would be the first to admit, because he called for it as because, like Wright, Willis, and Laskin before them, most Canadian law teachers took their graduate degrees in the United States; and, from the 1970s onward, US legal education was taking an interdisciplinary turn, leading to

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what Professor-Judge Richard Posner called “The Decline of Law as an Autonomous Discipline”8 (a decline that Posner himself probably did more than any other single person to help bring about). One might suppose that Arthurs would regard these developments with complacency, even triumph. But he does not. Much of his recent writing on legal education is in a dark and fearful key. He views the survival of law schools as centres of independent research and critical perspectives on law and its practice as under threat from two directions, one rearguard and reactionary, the other – and probably more serious – from macro-trends in political economy. 4 t h r e at s to h u m a n e p r o f e s s i o n a l i s m a n d   a r t h u r s ’ s ag e n da

To summarize the rearguard threats first. In the current recession and financial crunch, interdisciplinary studies are under severe challenge from new demands, inspired by the mounting expense and worsening job prospects for law graduates, for an end to frills and a return to basics. One such set of demands emanates from the Federation of Law Societies of Canada and its Task Force on the Canadian Common Law Degree, apparently the first time since the “Fiercest Debate” that professional bodies have tried to dictate law school curricula. Arthurs, for obvious reasons, views these demands as a retrograde reversion to “legal fundamentalism.” The Task Force’s key demands are for instruction in core competencies, which they define as the “foundations of law,” and certain “core principles” of public and private law.9 Arthurs reasonably points out that this list of competencies bears no demonstrated relationship to any actual kinds of lawyers’ practices. He is disturbed by its intellectual narrowness – if one really wanted to understand the “‘foundations’ and ‘core principles’ of law,” wouldn’t one have to learn some history, some sociology, some economics, some philosophy? If one wanted an intellectual preparation for current and rapidly changing lawyers’ tasks, wouldn’t one want to know something about what those tasks were; and would one begin and end with a set of doctrinal concepts elaborated at the end of the nineteenth century?10 The more profound threats that Arthurs identifies to liberalhumanist education, not just in the law schools but in universities generally, are in changes that are overwhelming societies and economies, and thus law as it has been both taught and practised – changes

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resulting from the great neo-liberal transformation in political economy. In a previous era, the development of regulatory-welfare states most affected legal scholarship and education by refocusing academic attention from courts and case law to statutes and administration. In the post-war social democracies, Arthurs points out, law was state action, and the state acted largely through administration. But neo-liberalism has called the legitimacy, effectiveness, and desirability of state action seriously into question: what global business wants is less state action (at least of the regulatory sort adverse to its interests), less redistributive social policy (at least of the sort that redistributes downwards rather than upwards), less coercive bureaucracy, and the shifting of the instruments of policy to privatized services, informal dispute-settlement, private-association codes and ­standards, and global institutions that can be counted on to put business i­ nterests first. Neo-liberalism elevates Friedrich von Hayek over John Maynard Keynes: its aim is the “undermining of the state’s main mission and the administration’s primary and most characteristic tasks: to curb private power, to distribute public goods, and to guarantee social justice and equity.”11 Globalization has become the “800 pound gorilla whose presence in our deliberations we can hardly avoid”: Globalization alters the material circumstances of states and of groups and communities within states. This restructuring of the economy leads to the reconfiguring of the market for legal services. In the United Kingdom, the decline of the industrial economy and the rise of one based on information technology and financial services has led directly to the decline of High Street law practices which serve small, local businesses and to the growth of large, city firms which serve a global clientele. In Canada, ever closer integration into a North American economic space dominated by the United States has realigned our economic and political elites and, inevitably, our legal elites as well. The result in both countries is not only specific changes in legislation, doctrine, procedures and institutions directly affected by the new economy. It is a more general redistribution of power and prestige within the legal profession; a new emphasis on what the profession and its regulators view as “relevant” knowledge valued skills and exemplary behaviour; and of course a revised sense amongst legal academics of what it is important for us to be teaching and writing about.12

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How should law schools respond to these changes? Arthurs is clear about one thing: they should resist the rearguard movements to narrow the curriculum. Law schools cannot function well as knowledge communities if their view of knowledge is disparaged, marginalized or suppressed because it conflicts with that of the profession; if legal orthodoxy has a privileged place on the curriculum and a preemptive claim on resources; if critical scholarship and trans­ formative pedagogy are seen as illicit attempts to subvert professionalism; if research, graduate studies and public advocacy come to be seen as derogating from the “true” or “core” mission of law schools or as mere decorative appendages to it.13 And how should the legal academy respond to the larger trends of globalization and globalization of the mind? In two ways: First, in a world that’s in flux, in a legal universe that is increasingly chaotic, it’s the academy’s job to make sense of it all. The academy should therefore chronicle change, identify continuities and discontinuities, demonstrate causes and effects and explain whose interests and which values are being advanced or attacked. The academy should advocate for change intelligently when it deserves support and fiercely resist it when it doesn’t. And the academy should wrestle with change: it should propose new statutes, conjure up new doctrines and invent new instruments of private governance. And now my second response. In its engagement with change, the academy must not only think about, write about and wrestle with change. It must equip future legal architects and legal artisans with the tools to enable them cope with change. And finally … change requires that legal scholars and students, legal practitioners and policy makers, venture into new domains of theoretical and practical knowledge. Academics in adjacent disciplines, experts in government agencies and private consultancies, leaders in business and social movements all have a great deal to tell us. To engage these “relevant others” in meaningful conversations, we must learn talk to them in their own vernacular. This is perhaps our greatest challenge: to learn to integrate law-talk with other discourses.14

A Heroic Agenda for Legal Education 197

This is a grand – sceptics might say even grandiose – agenda for legal academics. What makes it seem – however remotely – achievable is the authority of the source. Over the course of a long career, Harry Arthurs has actually done all of the things that he wants legal academics to do. He has engaged in creative and innovative legal practice, and been active in law reform and government policy-making; has acted, as a law school dean and university president, to make a reality of the integration that he calls for between law and other university faculties; has studied what lawyers and law professors do, and suggested how they could do it better; and, in his own scholarship, has always striven to bring deeper historical and broader comparative social knowledge to bear on the solution of current problems. And he has done all this with style, wit, and the warmest sympathy for his fellow creatures. We know what humane professionalism means, and what its enactment would look like, from knowing Harry Arthurs. No te s   1 Harry W. Arthurs, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto Press, 1985).   2 Robert W. Gordon, “Book Review,” Osgoode Hall Law Journal 24 (1986): 421.   3 Social Sciences and Humanities Research Council of Canada, Consultative Group on Research and Law, Law and Learning (Ottawa: sshrc , 1983).   4 The most comprehensive and best documented review of problems with US law schools and their causes and possible cures is Brian Z. Tamanaha, Failing Law Schools (Chicago, i l: University of Chicago Press, 2012).   5 C. Ian Kyer and Jerome E. Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923–1957 (Toronto: University of Toronto Press, 1987), 207–63. (This is, of course, a very Ontario-centric view of the origins of modern legal education in Canada, one omitting important earlier pioneers at Dalhousie and schools in the western provinces.)   6 See Constance Backhouse, “Revisiting the Arthurs Report Twenty Years Later,” Canadian Journal of Law and Society 18 (2003): 33, for a firsthand account of its reception by the Western Ontario law faculty.  7 s s h rc c , Law and Learning, 47–59 and passim.   8 Richard A. Posner, “The Decline of Law as an Autonomous Discipline,” Harvard Law Review 100 (1987): 761.

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  9 Task Force on the Canadian Common Law Degree, “Final Report” (Ottawa: Federation of Law Societies of Canada, October 2009), http:// docs.flsc.ca/APPRTaskForceReportOct2009.pdf, last accessed 24 July 2016 . 10 Harry W. Arthurs, “‘Valour Rather Than Prudence’: Hard Times and Hard Choices for Canada’s Legal Academy,” Saskatchewan Law Review 76 (2013): 73. In the United States, bar committees seeking to improve practical training often prescribe a required curriculum in trial practice skills – to prepare students for practice in a legal system in which both civil and criminal trials have almost vanished. 11 Harry W. Arthurs, “The Administrative State Goes to Market – And Cries Wee, Wee, Wee All the Way Home,” University of Toronto Law Journal 55 (2005): 797, 800. Arthurs documented the path of direct influence, the growing connections between Canadian law schools and Wall Street law firms, in “Poor Canadian Legal Education: So Near to Wall Street, So Far from God,” Osgoode Hall Law Journal 38 (2000): 381. 12 Harry W. Arthurs, “Law and Learning in an Era of Globalization,” German Law Journal 10 (2009): 629, http://www.germanlawjournal.com/ article.php?id=1111. 13 Harry W. Arthurs, “The Future of Legal Education: Three Visions and a Prediction,” Keynote Address, The Future of Law School Conference, Faculty of Law, University of Alberta (27 September 2013), http:// digitalcommons.osgoode.yorku.ca/cgi/viewcontent. cgi?article=1291&context=clpe, at 7, last accessed 24 July 2016. 14 Ibid., at 7–8.

12 The State of Legal Scholarship and Graduate Legal Education in Canada Liora Salter Toronto

1 f o u n d i n g p r e c e p t s o f g r a d u at e l e g a l e d u c at i o n

By the time he retired, Harry Arthurs had left a strong mark on legal education in Canada, one that remains today. At the very least, even in the most conventionally minded law schools in Canada, there has been a debate about how to strike a balance between learning the law versus learning about law and legal / normative regimes.1 Arthurs has expressed a number of precepts on which this chapter will focus. They are: (1) Legal education programmes should aim to be collaborative and interdisciplinary; (2) We should understand legal and normative regimes as only sometimes and partially constituted by formal law, formal law being understood here as the sum of texts and decisions made by legislators and the courts; (3) We should appreciate the enormous variety of legal institutions and the complexity of normative regimes, many of which do not appear to be very law-like; and (4) We, students of law (scholars and law students), should think critically about law, its history as well as the fact that law is embedded in everyday life and all social relations. In this chapter, I want to describe each of these precepts as they have affected graduate studies at Osgoode Hall Law School. A brief introduction to the elements of Osgoode’s graduate programme will be useful.

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2 o s g o o d e ’ s g r a d uat e p r o g r a m m e

Osgoode’s graduate programme is larger than most, and it differs from many, inasmuch as the emphasis is on the PhD.2 In recent years, we have had about fifteen entry-level PhD students annually, as well as about fifteen L L M s. We could easily have had more PhDs if the university had not imposed a quota. We recruit widely, emphasizing previous experience as much as academic qualifications in our search for new students. Judges, academics, and practising lawyers looking for an intellectual challenge find a comfortable home in our graduate programme. We also accept students without law degrees if they have graduate degrees in cognate disciplines and are doing research with a legal dimension. Interestingly, policies at the provincial and university levels militate against having a large cohort of international students, although we would seek many more if funding could be secured. In academic terms, the large cohort of students with such different backgrounds creates a critical mass of graduate students with different interests and backgrounds all progressing together, forming a genuinely intellectual community and encouraging cross-fertilization of ideas. We think of the programme as interdisciplinary in practice, even though some students do doctrinal work exclusively. Central to the programme are its Study Groups. These are broadly cast reading groups, organized around themes such as law and social justice, regulation and governance, and law and economic relations. Study groups have no set curriculum; they are not courses in the usual sense. The faculty leaders rotate so that any faculty member with an interest in teaching graduate students can do so. Study Groups have no examination, no papers to be written. Each week, students read at least a hundred pages, often choosing for themselves the papers that they read. Discussion is intense. Students remain active in one or another Study Group throughout their studies. The number of required courses is small. In this, Osgoode follows the English model of graduate education, but for its own reasons. As noted, students have widely divergent research interests. We also assume that even L L M students have already acquired the requisite expert knowledge about the law in their areas. Students are actively discouraged from taking J D courses, even for graduate-level credit. Emphasis is, instead, on long-form writing, both of the dissertation and of articles suitable for publication.3

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3 b u i l d i n g a n i n t e l l e c t ua l c o m m u n i t y

What brings students together initially and helps establish an intellectual community is an intensive graduate seminar.4 The seminar focuses on the research process and the ethos of scholarly work. It exposes students to a variety of research methodologies beyond those conventionally employed in law. For example, it is not uncommon to find students subsequently planning to do (and seeking further guidance on) quantitative work or ethnographic studies. Needless to say, there are many less formal occasions for students to work closely together, not the least of which are the many conferences that they attend, the atl as Agora5 wherein Osgoode partners with other universities worldwide, and the annual conference that the students organize. Meanwhile, the faculty reflects the same diversity of intellectual orientations and expertise, with several faculty members being crossappointed to other departments. A few faculty members do not have law degrees. They teach in areas, such as legal history and philosophy or policing, that have important implications for lawyers. 4 c o l l a b o r at i v e a n d i n t e r d i s c i p i n a r y wo r k

Arthurs may have been among the first to emphasize that intellectual work benefits from sharing, interaction, tacit and shared understandings, and the like. He presaged a general movement that now extends to industrial production in some sectors and is prevalent in the universities. Researchers are encouraged, through their universities and through strategic and network-based funding programmes, to gather together a large group of preferably international researchers to take on a multifaceted programme of research that has, at its core, a single theme or problem, or that reflects a strategic priority.6 It is easy to see how a collaborative approach might be out of sync with the prevailing ethos in a university, notwithstanding many statements to the contrary. Academics are judged on their own work. Those who collaborate are often questioned about their individual contributions. Even in the multifaceted research projects, all too often each researcher carries out his or her own work independently of others. If collaboration is often now more of a rhetorical flourish than a reality, it is not surprising that collaboration has little resonance at

202 Liora Salter

the level of graduate education. At Osgoode, only infrequently do faculty and students jointly research and co-author papers. From time to time, graduate students are hired on projects, but university policies limit graduate students to working only ten hours a week and demand that the great majority of this work be teaching assistance. Both policies militate against true collaboration. We tell students to author publications, such as book reports, jointly, but they seldom do. We identify those students with congruent interests and encourage them to work together, but they seldom follow up. Our students do not suffer the same intellectual isolation that attends upon many graduate programmes, but joint efforts are mainly in the area of mutual support, friendship, and sharing information about opportunities, except perhaps in the case of the graduate student conference. And, unlike in the hard sciences, but in the same manner as in all social science and humanities programmes in all universities, our graduate students are not permitted to set up or participate in jointly developed research projects from which each participant can identify his or her own contribution and write accordingly. In short, while we speak extensively about the value of collaboration among graduate students, the institutional rules and the local norms actually discourage it. 5 the challenges of interdisciplinary research

The problems with collaborative research are multiplied with interdisciplinary research.7 Disciplines operate within different epistemological frameworks, speaking effectively different languages (notwithstanding their common core of English), and are apprised of different debates within their literatures. Even words and metaphors commonly used in one discipline take on another significance when transposed to a different field.8 Disciplinary constraints are very much in evidence in the case of legal terminology and modes of reasoning. In my view, legal education for first-year students involves teaching them the language and the mode of reasoning of law as much as the subject content. I once described an essence of interdisciplinarity as involving translation.9 I took my cue from the professional translation of literature, an activity that involves the complex task of moving both ideas and

Graduate Legal Education in Canada 203

ways of speaking from one language context to another while maintaining the aesthetic and substantive content of the original work. Much more than collaboration is involved. True interdisciplinarity requires that time be spent on, and attention be paid to, the tasks of researchers learning to talk to each other, learning how to read each other’s disciplinary literatures properly, and becoming attuned to the nuances of the debates of other disciplines.10 The fact that the results are often well worth it, does little to minimize the effort involved.11 Arthurs has always been a strong proponent of forging links between social scientists and humanists and legal scholars.12 How­ever, there is little evidence in Arthurs’s publications that he promoted the mundane variety of interdisciplinarity currently prevalent in most universities and granting councils. Rather, his notion appears to be that the legal academy should count among its members legal historians, criminologists, legal anthropologists, legal philosophers, sociolegal scholars, students of regulation, etc. He recognized that each of these is a field of study and expertise in its own right, complete with its own quasi-disciplinary attributes, journals, networks, and the like.13 At the very least, his approach does not require those steeped in conventional legal methodologies, subject fields, and modes of writing to become pseudo–“social scientists,” a situation Arthurs was falsely accused of promoting in his earlier writing. Furthermore, Arthurs contended that law curricula must incorporate interdisciplinarity into their hiring policies and thereby import insights from other fields directly into the curriculum itself. Law schools should teach about the law as a central aim.14 Law schools should teach students to think the way lawyers actually think as they go about the actual practice of law. Doing so requires them to think in interdisciplinary terms.15 Graduate legal education is an excellent way of instituting Arthurs’s concept of interdisciplinarity. By acquainting students with a span of methodologies appropriate to interdisciplinary subspecialties in legal scholarship, and by acquainting them with the ever-increasing number of publications, networks, and conferences that attend to these subspecialties, the notion of what constitutes legal scholarship is expanded. In my view, graduate legal education has a different problem in connection with interdisciplinarity. Because students often come from legal practice, they bring with them habits of thought that are better attuned to professional lawyers than academics. They are wont to let

204 Liora Salter

their “theory of the case” and their arguments determine the substance of their research.16 Their conclusions are drawn in advance. These conclusions drive what is collected and what is used for an analysis. The idea that one would start with a question to which the answer was as yet undiscovered is foreign. As the practising lawyers that many of them are, how could they think otherwise? However, they are not lawyers when they are graduate students. Interdisci­ plinarity in the context of graduate legal education is thus about overcoming the divide between the conceptual frameworks associated with law and professional practice versus scholarship. Let no one doubt the seriousness of this challenge for many students. 6 t h e i n t e r ac t i o n o f l e g a l a n d ot h e r n o r m at i v e r e g i m e s

Fifty years ago, it was a profound and radical challenge to legal scholars to think of “law without the law.”17 Legal pluralism drew attention to the multiplicity of normative regimes operating within the same social space and to the complex interaction amongst these regimes.18 The contention was that formal law should be taken “out of its black box” and removed from its central place in our analysis. Ruth Buchanan sums it up neatly, citing Roderick Macdonald:19 As a “metaphor of multiplicity,” a legal pluralist approach suggests a number of points of departure from mainstream consti­ tutional accounts of law. It departs from the view that law is necessarily formal and can be institutionally identified with state action. It does not identify law exclusively with posited rules, distinct and territorially defined. And finally, it does not rely on a dichotomous construction of law and society (or politics) ... In the place of the clearly delineated and identifiable form of law situated within the bounds of constitutional theory, we find in legal pluralism a view of law (including transnational law) as emerging from a plethora of often competing normative frameworks.20 Following this line of thinking, we should see formal law as only one among many ways in which social conflict is constituted and sometimes resolved, and in which some semblance of order, such as it is, is achieved or imposed. We should see legal / normative orders as “overlapping, discrete, competing, interpenetrated, mutually constitutive.”21

Graduate Legal Education in Canada 205

We should study law in terms of its history, its foundational assumptions, its particular discourse, and both its position in and its effect on social relations, even while appreciating the indeterminacy of law.22 7 the many contested meanings of legal pluralism

The term “pluralism” has generated much debate among serious legal scholars,23 but it is all but taken for granted today as a legitimate approach. The term has had different meanings and occasionally unfortunate connotations in other disciplines. To a sociologist, the tenets of legal pluralism, if unelaborated, seem like basic sociology. Of course there are different normative systems at play and often in conflict, they say.24 To a political scientist or economist, the term “pluralism” can have a different meaning again. Unthinking use of the term makes it seem as though neither power nor political, social, or economic relations (as unequal as they are) is being factored into the analysis. After all, colonial regimes adopted a form of legal pluralism when they allowed for the recognition of traditional, informal, and /or customary law alongside their “rule of law” in order to exert their control better. The term “pluralism” smacks of false symmetries, made most evident when unthinking versions of cultural relati­ vism creep in. Given Arthurs’s work, it would be truly wrong-headed and unfair to associate any of these criticisms with his understanding of legal pluralism. Nonetheless, these criticisms are a good example of the “translation” problem. Graduate students in law encounter legal pluralism along with legal realism and critical legal studies, etc., to the extent that they encounter the history of legal scholarship or debates in legal theory. Many of them pay only cursory attention because they are preoccupied with their own research, much of which is very subject-specific and lawcentric. Several colleagues have argued that students are impoverished if they do not acquire background knowledge in theory. 8 ac q u i r i n g c r i t i c a l l e g a l s k i l l s

We at Osgoode seem to have chosen a different approach: by pushing students in the graduate seminar to think critically about their own approach to their subject matter, we think that we are accomplishing some of the same goals. We ask students: what assumptions are being

206 Liora Salter

made in your own work about power, about social relationships, and most importantly about the nature of law and its actual import? How far can you go in making your implicit understandings explicit, and a subject of discussion in your work? Not all students are prepared to travel very far in answering such questions. Our students do seem to grasp intuitively the basic tenet of pluralism – that is, the existence of and complex relationships between and amongst legal orders. What they often miss are the background debates that give rise to different approaches even within legal plu­ ralism. Occasionally, the students fall into what I have just called an “unthinking legal pluralism” wherein formal law remains the centre­ piece of the story to be told. But something is lost in translation, so to speak. A little knowledge, especially of theory, may well be worse than none at all. It grates on the ears to hear students sling terminology about that is deeply embedded in theory as if it were simply a collection of labels that they could attach to their work. It grates equally when they use the labels to construct a simplistic typology of theoretical approaches that they might have taken. In short, there is no right answer, but only a continuing debate about the best way to structure the graduate legal curriculum. 9 t h e e n o r m o u s va r i e t y i n l e g a l i n s t i t u t i o n s

Just as the average citizen tends to think of law as being court-based, so, too, are many legal scholars so focused on formal law that they appear to fail to see the significance of other kinds of legal institutions. Arthurs was not alone in contending that legal regimes and institutions come in many forms, only some of which bear any resemblance to what most people take for granted as law.25 Today, however, the variety of legal institutions is a taken-for-granted premise that underpins many different bodies of legal scholarship. A good example of the way in which many researchers are attending to the variety of legal institutions is found in a growing literature on regulation as understood from an institutional perspective.26 In this literature, the term “regulation” refers to more than tribunals and agencies delegated by legislation to perform administrative tasks and to execute a set of rules that have the effect of law. All variants and  possibilities for experimentation in regulatory institutions are routinely considered. It is often acknowledged that fundamentally

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different relationships are constituted in the regulatory space than are commonplace in the type of law evidenced in the courts. 10 t h e t h e o r e t i c a l q ua n da ry o f m a p p i n g a n d   t r ac k i n g r e g u l ato ry r e g i m e s

For example, a state agency might well delegate the setting, monitoring, and even enforcement of standards to a private body made up of “stakeholders,” reserving its legal powers to act for situations in which there are clear indications of the failure of the process. Regulators today can be public, private, or what is often called hybrid – that is, a mix of the two.27 Regulators may have a mandate to act in relation to the private sector (and private forms of behaviour) but many also oversee the actions of the state. Furthermore, any regulatory regime is fragmentary,28 made up of multiple bodies of different sorts exercising whatever powers they possess to steer behaviour towards public-interest objectives.29 The advantages of the broader conception are easily discerned. If one is prepared to think of law in terms of its many roles, rather than its legal specificity, not only can one take account of the hybrid and multifaceted regimes just mentioned, but much else comes under the umbrella of legal scholarship that otherwise would be excluded. Moreover, the potential for a radical critique lies just below the surface. For example, it can be said that, by focusing on formal law exclusively, attention is directed only to the particular variant of formal law that is evidenced in Western legal systems, especially in industrial countries. Or, by accepting only some of the tenets of legal pluralism, one could easily fail to see how recognizing the coexistence of other normative regimes could become part of a colonial mindset. Focusing exclusively on formal law tells us little about law’s silences: that is, the ways that some groups, some offences, some relationships are discounted by virtue of being de-positioned in ordinary legal discourse. Studies of formal law often have a very circumscribed notion of social change, a view in which change is understood only in terms of legislative actions and the evolution of precedent through successions of cases. Focusing on formal law can lead to a formalistic and individualistic notions of “rights,” as opposed to social justice. Focusing exclusively on formal law can lead to a failure to account for the constitution and operation of power. The kinds and levels of change that are intrinsic to social transformations, such as those that

208 Liora Salter

are occurring under globalization, might well fall outside the spectrum of analysis. Finally, with a focus on formal law, researchers might well overestimate the capacity of formal law and the state to resolve social problems. Needless to say, not every scholar who focuses exclusively on formal law falls victim to missing the larger picture. Pointing out a tendency to do so was one of the enduring challenges that Arthurs posed to his colleagues and students. 11 t h e c h a l l e n g e o f d i v e r s i t y f r o m a l e g a l e d u c at i o n p e r s p e c t i v e

In our graduate programme, we have had a large contingent of students, many from the Gulf States, who aim to dissect the relationships and interplay of Western legal traditions, colonialism, and, in some cases, sharia law. We have students who affiliate themselves with t wa il – that is, Third World Approaches to International Law. Some of them look at how formal law, as Westerners understand it, could readily lead to new forms of colonialism. We have many students who focus on law’s silences, using lenses such as critical race theory and the writings of various feminist theorists to do so. We have students who focus on alternative dispute resolution and on legal aid as it is actually experienced by its so-called clients. And we have many students who focus on transnational law, which is intrinsically an unstable blend of public and private actors, customary law, aspirational precepts, and relationships affected not only by coercion but also by trade and other constraints, all buttressed by economic power that has complex and incomplete relationships to state power. To say that our students recognize the shape-shifting character of law is not to say that they understand the implications of approaching legal scholarship in this way. Few students have put themselves in a position to understand the relationships that characterize regulation, let alone other forms of governance as well. Some students of regulation still speak of “command-and-control” regulation or “captured regulators,” unintentionally parroting ideologically based statements in both the literature and the popular press, even while missing the symbiotic relationships among the regulators and the regulated and the political contestation that embeds voluntary guidelines into the legal system as new forms of governance. Also, many students are wont to study social change by focusing on the state

Graduate Legal Education in Canada 209

exclusively. They bend their recommendations to the dictates of state policy as if governments acted without regard to anything but electoral politics, media, or the advice of their policy advisors and academic consultants.30 Some of our students have even spoken about globalization and the new digital economy without even mentioning the corporate presence. Some students study international law as if the United Nations were the only institution functioning in the international sphere and as if it were a government, as opposed to one of many differently influential governance institutions. Students seem to show little interest in labour as a site of struggle in the economy, and barely mention trade unions as a social force. In short, many students are only partially influenced by Arthurs’s challenges, and more’s the pity. 12 e m b e d d e d l aw

Political figures today often call for the shrinking of government and the dismantling of regulatory regimes. Implicit in the notion that laws and regulations “command and control,” and thus are inef­ fective and undesirable, are two assumptions: first of all, that law has the capacity to “command and control,” and, second, that law is imposed upon otherwise freely acting individuals. The private spheres of individual and corporate activity are seen to be self-sustaining and inherently preferable. It is easy to identify where such pronouncements fail to square with reality – for example, in new legislation that extends the surveillance of speech and actions, or in instances where corporations push for new laws and regulation in the form of intellectual property, patent, and copyright protections. Free markets function because there are legally mandated bodies that facilitate their transactions and deal with failures deemed to be a threat to the very essence of properly functioning economic relations. Unfettered access to the resources necessary for private economic activity often depends upon permit-granting (legal) authorities. Otherwise, unsustainable risks attendant on corporate activity are made sustainable when they are offloaded onto government – banking quickly comes to mind as but one example. The precept that law is embedded in all social, political, and economic relations goes well beyond such observations. It has two elements, in my view: the first is the contention that any clear demarcation between public and private spheres of activity and any attempt to

210 Liora Salter

embed law exclusively in the nation-state are profoundly misleading in today’s world, and probably were also in the past. The second is the contention that all private relationships, including the market, are underpinned by law; that is, that they are made possible by a set of understandings, rules of the game, and mechanisms that owe everything to law (and here I am speaking about formal law primarily). At first glance, herein lies a contradiction. On the one hand, as has just been claimed, formal law is understood to be nowhere as present, central, or all-encompassing as is commonly assumed. On the other hand, law (again meaning mainly formal law here) constitutes virtually all social relationships, both by setting ground rules and by legitimating the result, often in the name of private actions by private actors. In fact, both contentions are valid, supported by evidence. I believe that Arthurs would say that identifying such contradictions is the lifeblood of any analysis that reflects the complexity of social relations.31 Contradictions propel change in social relations even while they bedevil attempts to arrive at “keep it simple” explanations and recommendations for such change. This is where I think that we fail our graduate students. Not surprisingly, they are seduced by “keep it simple” explanations.32 I am not sure there is any way to avoid this situation. Students are still struggling to gain a command of the state of law in their specific subject areas. They usually do not have the time, background, expertise, or inclination to push further into the nature and import of contradictions. In some of the Study Groups, the faculty leaders push hard and the readings are more demanding, to say the least. In other groups, the emphasis is on making sure students are acquainted with basic texts and arguments. Of course, a few students are on track to produce scholarship of the breadth and depth of Arthurs’s work, but they are the proverbial exception, not the rule. But there’s the rub, as the cliché goes. Not only in law, but also in a number of disciplines and fields of study today, there is no agreement on a single body of foundational writings, no consensus on which debates are crucial to scholars in the field. Comprehensives in many other disciplines have become subspecialized, so that they are not really comprehensive at all. Meanwhile, I cannot imagine faculty members at Osgoode agreeing on what constitutes foundational work, or even whether having read H.L.A. Hart and A.V. Dicey and / or Gunther Teubner and Niklas Luhmann, for example, is a crucial requirement for the student of Aboriginal law or legal clinics.

Graduate Legal Education in Canada 211

13 y e t ot h e r c h a l l e n g e s to l e g a l s c h o l a r s h i p a n d e d u c at i o n

Finally, recall that all of Arthurs’s other precepts need to be incorporated in the discipline of legal scholarship. In my view, this is Arthurs’s most radical critique. Just think of what it would mean if we were to abandon the nonsense that posits disciplines (and here law is included as a discipline) as having internal consistency, coherence, a single body of agreedupon foundational texts, and clearly demarcated boundaries between one discipline and the next.33 We would then welcome the debates that Arthurs’s challenges have spawned about the proper preoccupations and scope of legal studies. They would be seen as characteristic of debates in all social science disciplines, with the possible exception of economics. Just think if our notions of law were premised on its disconnection from the nation-state and if our analyses were based upon a decentred notion of the public domain. International law would no longer be labelled as such. Instead, we would reach for a better understanding of the many roles played in governance by both formal and informal law, taking account of shifting public and private relations, and the ways that citizens still manage to affect law, policy, and debate. We might substitute the label “transnational law” or, better yet in my view, “governance in the era of globalization” to capture the notion that, while law at the nation-state level is fundamentally important, there is much that escapes its grasp. Just consider what it would mean to think of hallowed concepts appropriated from legal discourse as undesirably biasing the struggles for social justice, as clouding our understanding of constitutions, declarations, conventions, and the like, and as occluding a solid understanding of the real import of changes to the profession of law. To speak of undergraduate education in law for a moment, just think what law schools would look like if they took interdisciplinarity seriously, not just as a supplement to the task of educating students for the practice of law.34 It would not mean discarding the fundamentals: students do need to learn how to speak, write, and read the discourse of law that is found in legal texts. It would mean, however, rethinking the subject-specific studies of law as the main corpus of undergraduate law school curricula. In effect, undergraduate legal

212 Liora Salter

education would come to resemble graduate studies in law (at least as it is practised at Osgoode) much more closely. As for graduate education, again, these changes would not mean that doctrinal scholarship would be abandoned, or that the study of particular areas of law should be eliminated.35 Rather, it would be a matter of adopting a different standpoint. To wit, if we were to stand outside the conventional notion of law as a discipline in attempting to study and teach law, we could identify where these specific studies of legal texts fit, and when and how they are open to challenge by changing circumstances and historical forces. We could see what we are currently missing about the transformation of the state and private power, and make this integral to our scholarship. We would become aware of how the assumptions of conventional legal scholarship are carried over into our understanding of other realms of social life, not always to our benefit. 14 c a n t h e p r e c e p t s o f l e g a l e d u c at i o n be generalized?

What are the obstacles to realizing at least some of this potential for a renewed version of legal scholarship? Why are not all graduate programmes like that of Osgoode? There must be good reasons. Arthurs himself is quick to point them out.36 First, curricular reform at the undergraduate level is never easy or uncontested, and would not be so even if all educational authorities were to accept the need to refashion legal education in the manner that Arthurs envisions. Without such reform, it is hard to imagine how graduate legal education, which mirrors undergraduate education in most law schools, might be changed significantly. Second, Osgoode’s own graduate programme will change, and so it should. It will need to be refreshed and rethought if it is not to stagnate. Those involved in future reforms will not be so influenced by Arthurs as we have been. Third, scholarly debates exhaust themselves even when unresolved. The challenges that Arthurs posed in the name of legal pluralism have by no means been met, but preoccupations change and, with them, the contours of debate, so central to the shape of the discipline, are altered accordingly. Fourth, as Arthurs was quick to point out, there is a political economy to legal education, including graduate legal education, and to legal scholarship. The reduction of resources allocated to universities

Graduate Legal Education in Canada 213

and the pressures for control exerted by the legal profession are unlikely to generate an atmosphere conducive to innovation, experimentation, and radical changes. Finally, the political and intellectual ethos of today is quite different from when Arthurs and others first articulated their challenges to legal scholars. We have moved away from an expansionist notion of the public good, even as reflected in law schools and scholarship. All that said, recall the span of interests of the graduate students described above. It is unlikely that anyone or anything will be successful in restraining these students’ socio-legal imaginations or the social consciousness so evident in their work. At least some of them will issue their own challenges when they become the new members of the academy. These challenges will likely be different from those posed by Arthurs, but they will honour his intentions nonetheless. N ot es   1 See, for example, John D. Whyte, “Finding Reality in Legal Education,” Saskatchewan Law Review 76 (2013): 95; and Ian Holloway, “The Evolved Context of Legal Education,” Saskatchewan Law Review 76 (2013): 133.   2 Osgoode also has a professional development graduate programme. It is very different from the description offered here. See http://www.osgoode. yorku.ca/programs/pd, last accessed 24 July 2016.   3 We have never had comprehensive examinations for our PhD students. We do something similar: students write a lengthy (60-page) critical review of the literature and include discussion of their proposed methodology in addition to submitting their research proposals. These papers are examined by a committee, and students must pass to continue in the programme.   4 See http://www.osgoode.yorku.ca/programs/graduate-program/uniqueopportunities/ (last accessed 25 July 2016) for more information on the Graduate Seminar at Osgoode.   5 The Association of Transnational Law Schools (atlas ) was formed in 2006 with the objective of bringing together talented doctoral students in the field of law from nine universities around the world. atlas promotes in-depth study of legal issues such as comparative legal and regulatory responses to globalization and the evolution of transnational law, among others. Members meet in what is known as “Agora” every summer at one of the member law schools to brainstorm and encourage legal scholarship. See http://associationoftransnationallawschools.blogspot.ca, last accessed 24 July 2016, for more information on atlas Agora.

214 Liora Salter

  6 See, for example, Social Science and Humanities Research Council Connection Grant; Social Science and Humanities Research Council Partnership Development Grant; Social Science and Humanities Research Council Insight Development Grant; and Social Science and Humanities Research Council Insight Grant.   7 See Liora Salter and Alison Hearn, Outside the Lines: Issues in Interdisciplinary Research (Montreal, qc , and Kingston, on: McGillQueen’s University Press, 1996).   8 For an excellent but early discussion, see Cameron Deborah, Feminism and Linguistic Theory, 2nd ed. (London: McMillan Press, 1992).   9 See Salter and Hearn, Outside the Lines, 140. 10 As Arthurs puts it: “Anyone who has engaged in earnest exchange with colleagues for three hours or three days knows that the longer one seeks common ground, the more steeply it falls away.” Harry W. Arthurs, “Compared to What? The u cla Comparative Labor Law Project and the Future of Comparative Labor Law,” Comparative Labor Law and Policy Journal 28 (2007): 591–612, at 592. 11 For discussions of interdisciplinarity in law, see, for example, Steven B. Dow, “There’s Madness in the Method: A Commentary on Law, Statistics and the Nature of Legal Education,” Oklahoma Law Review 57 (2004): 579; David M. Trubek, “Where the Action Is: Critical Legal Studies and Empiricism,” Stanford Law Review 36 (1984): 575; and Douglas W. Vick, “Interdisciplinarity and the Discipline of Law,” Journal of Law and Society 31 (2004): 163, at 167. 12 For his attempt to quantify the extent of such links, see Harry W. Arthurs and Annie Bunting, “Socio-Legal Legal Scholarship in Canada: A Review of the Field,” Journal of Law and Society 41 (2014): 487. 13 Harry W. Arthurs, “The Political Economy of Canadian Legal Education,” Journal of Law and Society 25 (1998): 14, at 26. 14 Harry W. Arthurs, “The Spider, the Bee, the Snail and the Camel: Legal Knowledge, Practise, Culture, Institutions and Power in a Changing World,” c lpe Research Paper 1 (2005): 10; Vick, “Interdisciplinarity and the Discipline of Law,” 163; Whyte, “Finding Reality in Legal Education,” 95. 15 Harry W. Arthurs, “The Future of Law School: Three Visions and a Prediction,” Alta Law Review 51 (2013–14): 705, at 712. 16 Arthurs, “The Spider, the Bee, the Snail and the Camel,” 3n17. 17 See Harry W. Arthurs, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto Press, 1985).

Graduate Legal Education in Canada 215

18 See Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation, 2nd ed. (London: Butterworths LexisNexis, 2002). 19 Roderick MacDonald, “Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism,” Arizona Journal of International and Comparative Law 15 (1998): 69; Roderick MacDonald, “Critical Legal Pluralism as a Construction of Normativity and the Emergence of Law,” in Andrée Lajoie, Roderick A. Macdonald, Richard Janda, and Guy Rocher, Théories et émergence du droit: pluralisme, surdétermination et effecti­ vité (Montreal, qc: Editions Thémis, 1998), cited in Harry W. Arthurs, “National Traditions in Labor Law Scholarship: The Canadian Case,” Comparative Labor Law and Policy Journal 23 (2002): 645, at 665. 20 See Ruth Buchanan, “Reconceptualizing Law and Politics in the Trans­ national Constitutional and Legal Pluralist Approaches,” c lpe Research Paper 4 (2008): 1, at 12. 21 Ibid., 3n24. 22 See Harry W. Arthurs, “The Re-Constitution of the Public Domain,” in The Market or the Public Domain?: Global Governance and the Asymmetry of Power, ed. Daniel Drache (London: Routledge, 2001); Arthurs, “‘Valour Rather Than Prudence’: Hard Times and Hard Choices for Canada’s Legal Academy,” Saskatchewan Law Review 76 (2013): 73, at 83. 23 Arthurs provides an eclectic list of recent important contributions that includes: Sally Falk Moore, “Law and Social Change: The SemiAutonomous Social Field as an Appropriate Subject of Study,” Law and Society Review 7 (1973): 719; Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York: Octagon Books, 1978); Marc Galanter, “Justice in Many Rooms: Courts, Private Ordering and Indigenous Law,” Journal of Legal Pluralism 19 (1981): 1; John Griffiths, “What Is Legal Pluralism?” Journal of Legal Pluralism 24 (1986): 2; Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Legal Field,” Hastings Law Journal 38 (1987): 805; Sally Engle Merry, “Legal Pluralism,” Law and Society Review 22 (1988): 869; Gunther Teubner, Autopoietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988); Peter Miller and Nikolas Rose, “Governing Economic Life,” Economy and Society 19 (1990): 1; Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science, and Politics in the Paradigmatic Transition (New York: Routledge, 1995); Roderick MacDonald, Lessons of Everyday Law (Montreal, qc , and Kingston, o n: McGill-Queen’s University Press, 2002).

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24 Such were some of the problems of the law programme developed by the Canadian Institute for Advanced Research according to an informal report from its 1996 review. 25 As Arthurs notes in connection with changes in labour law: “As states divest themselves of the right to make labor law, the means to enforce it, and the institutional capacity even to think about it, the significance of non-state labor law is likely to grow proportionately. Of course, labor lawyers will still have to concern themselves with the vestigial remnants of the ‘common and statutory law’ of labor … and, increasingly, with aspects of state law and policy that originate in other policy domains but affect labor. But more and more they are likely to be preoccupied with the significant corpus of labor law that originates from sources other than the state, and that is enforced elsewhere than in state tribunals.” See Arthurs, “Compared to What?” 592, and “What Immortal Hand or Eye? – Who Will Redraw the Boundaries of Labor Law?” in Boundaries and Frontiers of Labor Law: Goals and Means in the Regulation of Work, ed. Guy Davidov and Brian Langille (Oxford, u k : Hart Publishing, 2006), 373–89. 26 See listserv [email protected], and the journal Regulation & Governance, Wiley Publishing Asia Pty Ltd, Online issn: 1748-5991, http://onlinelibrary.wiley.com/journal/10.1111/%28ISSN%291748-5991. 27 See, for example, Christopher Hood et al., Regulation Inside Government: Waste Watchers, Quality Police, and Sleaze-Busters (Oxford, uk : Oxford University Press, 1999). 28 For a discussion of the fragmentary nature of regulatory regimes, see Colin Scott, “Regulating Everything,” u cd Geary Institute Discussion Papers Series (2008), http://www.ucd.ie/geary/static/publications/workingpapers/ gearywp200824.pdf, last accessed 24 July 2016; Colin Scott, “Regulating in Global Regimes,” u cd Working Papers in Law, Criminology & SocioLegal Studies Research Paper No. 25 (2010); Colin Scott, “Accountability in the Regulatory State,” Journal of Law and Society 27 (2000): 38–60. 29 Julia Black defines regulation as follows: “[T]he sustained and focused attempt to alter the behavior of others according to defined standards or purposes with the intention of producing a broadly identified outcome or outcomes, which may involve mechanisms of standard-setting, information-gathering and behavior-modification.” Black, “Critical Reflections on Regulation,” Australian Journal of Legal Philosophy 27 (2002): 1, at 26. 30 See Arthurs, “The Re-Constitution of the Public Domain.” 31 Arthurs, “National Traditions in Labor Law Scholarship,” 665. 32 If they often do not understand regulation as a legal regime and set of legal institutions, how could they be expected to know about regulation

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theory, which rests on far more complex notions of social relations, or to appreciate sophisticated systems theory as evident in the work of Gunther Teubner? 33 See Salter and Hearn, Outside the Lines, 25, for a discussion of the ­characteristics of various disciplines, including economics. For two of the better accounts of the history of disciplines, see Whitley Richard, The Intellectual and Social Organization of the Sciences (Oxford, uk : Clarendon Press, 1984); and Peter Dear and Sheila Jasanoff, “Dismantling Boundaries in Science and Technology Studies,” i s i s 101 (2010): 759–74. 34 For discussion, see Harry W. Arthurs, “Madly Off in One Direction: McGill’s New Integrated, Poly-Jural, Trans-Systemic Law Program,” McGill Law Journal 50 (2005): 706–20, at 707. 35 Arthurs, “The Spider, the Bee, the Snail and the Camel.” 36 Ibid.

13 “Globalization” as Framing Concept: Some Implications for Legal Education1 William Twining London

“What’s the use of a book,” thought Alice, “without pictures and conversations?” Lewis Carroll, Alice’s Adventures in Wonderland, chapter 1

Alice might have asked: What’s the use of a Festschrift without debate and provocation? Harry and I share many opinions, but we differ in our “takes” on some aspects of our overlapping interests. Over the years, our views have largely converged, but some of our recent writings diverge in focus and emphasis. These differences need not involve disagreements. Indeed, the main aim of this chapter is to suggest that, if law teachers in Canada can frame the issues in broader terms in the context of comparative perspectives, the local higher education system, the total process of professional formation and development, and the wider functions of law schools, then the debate may be reframed and change, especially if the spokespersons can, like Harry, bring their educational expertise, cosmopolitan outlook, and trenchant advocacy to bear forcefully on the local issues. This approach should add to the valour and armoury of Arthurians in their local political struggles.2 The key point is that Harry and I have been using quite different conceptions of “legal education” and “globalization,”

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and this has significant implications not only for general discussions of legal education as a field of research, activism, and policy-making, but also for strategies and advocacy in the context of local politics and the diplomacy of professional education and training for practising lawyers. Harry’s writings about legal education are mainly focused on Cana­ dian university law schools and professional formation. Recently, in “‘Valour Rather Than Prudence’: Hard Times and Hard Choices,” he eloquently dissected the institutional barriers to opening up and de-parochializing the first law degree curriculum in Canadian law schools.3 He reiterated his trenchant attacks on “legal fundamentalism,” and urged academic lawyers to stand up to members of the legal profession, students, and other stakeholders when they opposed any significant changes. The general thrust of the argument has resonance in many common law countries. An important theme is that the possibilities for genuine reform in legal education and training are constrained by local context and history. Many of Harry’s ideas are summed up in the rich concepts of “humane professionalism” and “legal fundamentalism.” Our contexts have been significantly different, but I have been among those who have supported similar causes in England and Wales and elsewhere. Two documents have influenced my more general ideas on legal education: one is Arthurs’s Report on Law and Learning (1983),4 which became an influential model for thinking about legal scholarship generally and empirical legal studies in particular.5 Although only marginally involved, I learned as much from Arthurs’s process before and after the Report as from the document itself. The other document, which preceded Law and Learning, was the Inter­ national Legal Center (i l c ) report on Legal Education in a Changing World (1975), an early attempt to look at academic law from a “global” (almost) perspective. I was a member of the i l c Committee which met in New York from 1972 to 1976, and I learned far more from the whole experience than I contributed. Indeed, it took some years for some of the main ideas to sink in. I was one of the authors of the report; however, since my interpretations may diverge in significant ways from those of my coauthors, I take responsibility for the views advanced here.6 There is great variety in the ways learning about law, both formally and informally, takes place within and between different countries and spheres. In order to spell out a bold vision of the potential role of

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mainly Western-influenced university law schools in “the world,” the i l c Committee had to move from the idea of “legal education” as something taking place almost entirely in universities, to one that encompasses a total picture of all learning about law in a given society. This is in the spirit of Lawrence Friedman’s only slightly exaggerated dictum that “[l]ife in America, and in the West in general, is a vast, diffuse school of law.”7 The main hypotheses underpinning this “total picture” of “legal education” in a given country can be articulated as follows:8 In (almost) all societies: 1 Almost everyone receives some legal education. 2 This process lasts from cradle to grave. 3 The amount of informal legal education (i.e., outside educational programmes) greatly exceeds the amount of formal legal education, even for career lawyers. 4 The actual and potential demand for formal legal education almost invariably exceeds the supply. 5 Most formal legal education is delivered in institutions other than law schools. 6 Specialized institutions called “law schools” can be quite varied.9 For example, they vary within and between countries in respect of size; wealth; manifest and latent functions; prestige and influence; the age, class, and gender of students, teachers, and other staff; academic standards; conceptions of scholarship; traditions of education; and even architecture.10 7 The culture of (university) law schools is, to some extent, international within legal traditions or families, but it is also much influenced by local historical, economic, ideological, and other factors including the structure and financing of higher education and distributions of power and authority, and the nature of the legal system and legal profession(s). Much has happened in many countries since this formulation was drafted in 1994, and not much in others. Here, I am only concerned with the implications of this broadened conception of “legal education” as a framing concept for discussing the subject both locally and transnationally. The first implication is that we had to broaden the working conceptions of “law,” “legal education,” “law school,” and “law student”

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as they are normally used (often ambiguously) in the West. Narrower conceptions just would not fit the diverse patterns that we perceived upon the basis of uneven data and impressions.11 The second implication is that, even if one wanted to focus mainly on university law schools, as the i l c Committee had wanted to do, in order to talk transnationally one had to think in terms of “national legal systems of legal education”12 in order to consider the diverse ways in which learning about law takes place in different local contexts. Thirdly, how many types of legal education activity are undertaken by particular university law schools varies widely: some focus almost entirely on first degrees in law (“the primary school model”); some have postgraduate programmes of various kinds; some offer interdisciplinary or multinational degrees (e.g., English and French or Italian law); some offer conversion courses or access courses; some have outreach programmes of varying kinds; some may be substantially involved in continuing professional development; some even provide courses or programmes for legal educators; and so on. It is probably quite rare for a university law school in Canada or England to offer only first degrees in law. However, very nearly all debates about “legal education” in your country and mine focus almost entirely on first degrees in law (as is illustrated by most law school league tables) and initial formal training for practice. This has unfortunate limiting effects on the self-perceptions, practices, reputations, and ambitions of nearly all university law schools that I am familiar with.13 The il c report offers a very different model: 1 “Law schools of the future should be viewed as multi-purpose resource centers dealing with all levels of legal education and staffed by a corresponding variety of specialists.”14 2 “The single most important resource in any national system of legal education is the law teacher.”15 3 “The full-time scholar-teacher of law may need to be better equipped as a professional in three respects: as a lawyer, as a researcher, and as an educator.”16 The il c Report emphasizes, as does Arthurs, the key actual and potential roles that can be played by full-time teachers of law in a healthy national system of legal education. In the present context, the statement of paragraph 3 is too weak.17 I would add “­administrator  / ­ politician” and put much more emphasis on the educator element as

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follows: As professionals, individual scholar-teachers of law should be lawyers, educators, scholars, and administrator-politicians, in different mixes at different stages of their careers.18 This stems from the hypothesis that, in nearly all (Western) societies, a few academic lawyers are almost the only professional legal educators, and that most have not taken their roles as educators nearly seriously enough, nor have they been generally perceived as professional experts by other members of the legal community.19 This has changed recently in some places, but insofar as these hypotheses are broadly true there are some important corollaries: First, collectively, the academic legal profession and its representatives are and should be the main repository of educational expertise within their national system of legal education. Educational expertise is not part of the job description of most practising barristers, solicitors, or judges. Of course, most career legal professionals are involved in mentoring, teaching, and assessing competence for substantial parts of their careers. Often, they are the best qualified people to do this. Some may be genuinely interested in education. But they are not professional educators. For example, they cannot be expected to devote much effort to empirical and other research, or analysis of professional formation and development, let alone wider aspects of “legal education” broadly conceived, nor to studying developments in other countries, other professions, and other disciplines. Second, if the academic legal profession is to take these roles and responsibilities seriously, the formation of genuinely expert or professional legal educators should involve much more than perfunctory initiation into classroom and other pedagogical techniques, important as these are. “Expertise” in this context should include knowledge of the history, structures, and financing of one’s national higher education system,20 as well as of the legal education system as a whole, including informal learning about law, familiarity with the relevant literature,21 and practical experience of classroom teaching, course management, curriculum planning, and the politics and diplomacy of legal education and training. All full-time scholar-teachers of law need to acquire some up-to-date knowledge, awareness, and skills in the contexts in which they operate; the spokespersons for the academic legal profession need plausibly to claim to be, and to be perceived to be, professional educators with a command of the wider picture. Focusing on the first few years of professional formation is far too narrow and distorts perceptions of the issues, problems, and possible solutions.

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Third, this may sound more demanding than it is.22 Indeed, there have been advances in recent years: some policy is more evidencebased than it was, the literature is more sophisticated, and sustained research mainly by academic lawyers is now quite well-developed.23 But there is a long way to go if an academic legal community is to take much of the responsibility for the health of their national system of “legal education.” I have dealt on these themes at length elsewhere.24 The important point here is that, insofar as law teachers, collectively and individually, take themselves seriously as educators and are taken seriously as having a near-monopoly on expertise as legal education professionals, this expertise should extend to all important aspects of the national situation in their own country, not least in respect of all aspects of professional formation and development from cradle to grave. g lo b a l i z at i o n a n d l e g a l e d u c at i o n

Attention is now turning to the implications of “globalization” in relation to legal education. There has been much talk of global law, global law firms, global law schools, and even global lawyers. Such talk typically involves “hype.” Among the many uses, misuses, and abuses of “globalization” there are two fairly well-established ­primary meanings. The first is a narrow one referring mainly to economic relations within a putative single-world economy. This is exemplified by “the anti-globalization movement” and talk of “hegemonic” forces, neo-liberalism, and the dominance of a few powerful nations. This usage typically refers to the world as a whole with occasional lapses into hyperbole. The other usage implies that not all examples of “globalization” can be described or explained solely or mainly in politico-economic terms. Natural disasters, epidemics, new technologies, climate change, civil wars, and diffusion of cultures, religions, languages, and normative orders may all have an economic dimension, but they cannot be accounted for in monocausal terms. This usage emphasizes the complexities of these processes that increase interaction and interdependence throughout the world or substantial parts of it. Unfortunately, the weasel word “globali­ zation” has become established rather than “transnationalization” (or some less ugly term), for many of the phenomena that are discussed in relation to this are more or less widespread rather than world-wide. For example, some of the most significant transnational and supra-national patterns relating to law are sub-global regional,

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diasporic, religious, linguistic, and so on. None of the major legal traditions are truly global. In recent writings, Harry Arthurs uses “globalization” in the economic sense; I have used it in a much broader sense to cover many different phenomena and processes at sub-global as well as genuinely global levels. Both uses are legitimate, provided the usage is clear: “economic globalization” and words such as “transnationalization,” although vague, bring out the different meanings. The implications of this difference in perspective are illustrated in relation to legal education. Harry has been concerned that the effects of the dominance of the political economy by neo-liberal forces are leading to a dangerous neo-liberal “globalization of the mind” in North American law schools.25 He eloquently points out the dangers and holds up the new McGill approach as an alternative model for legal education and scholarship.26 I am not sufficiently familiar with recent developments in North America to comment on the details of his thesis, except to say that I may be a little more optimistic about the implications of “globalization” than he is. In venturing into this area, I have used much broader conceptions of “globalization” and “legal education” as framing concepts. The result has been to focus on a different agenda of issues and themes, and to modify my views on some aspects of the i l c Report. Two are pertinent here. The first theme is about the dangers of generalization about legal phenomena in the world as a whole. We lack even adequate concepts to frame hypotheses, let alone reliable data to check and refine these hypotheses. The il c Report was produced before words like “globalization” had become widely current, but we did claim to adopt a global perspective. From today’s perspective, many of its generalizations were at best speculative, crude, and undifferentiated;27 even the hypotheses that I have cited above involve very rough conceptualizations; they are quite inadequate for producing meaningful statistics. However, they can still be used as a rough template for countries that have a fair degree of institutionalization of universities, formal legal education, and legal professions; for example, one can learn quite a lot by applying them to England and Wales, a Canadian province, and Hong Kong. I have used them for suggesting a broad perspective on which individual scholar-teachers of law in contemporary Western systems of legal education can reflect on the implications of “globalization” for their subdiscipline, teaching, or research project in their own

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local context. This perspective would need to be refined considerably to do more than enable them merely to reflect critically on a few working assumptions that may be being challenged by the complex macro- and micro-phenomena of “globalization.”28 Almost none of this is necessarily incompatible with Harry Arthurs’s theses as they apply to Ontario, Canada, or North America. But it may suggest to Arthurians some concepts, strategies, and ideas for addressing local issues from a broader perspective and taking responsibility for some wider agendas for “legal education.” No te s   1 This chapter is a development, written in a Christmas spirit, of themes advanced at greater length in the following works by the author: Black­ stone’s Tower (London: Sweet & Maxwell, 1994) [hereinafter B T ], Law in Context (Oxford, u k : Oxford University Press, 1997) [hereinafter LiC], especially ch. 15; General Jurisprudence (Cambridge: Cambridge University Press, 2009) [hereinafter g j p ], especially ch. 17 (http://www. cambridge.org / twining, last accessed 24 July 2016); Globalisation and Legal Scholarship (Oisterwijk, Netherlands: Wolf Legal Publishers, 2009 / 2013) [hereinafter g l s ]; and “l e t r : The Role of Academics in Legal Education and Training: Ten Theses,” The Law Teacher 48 (2014): 94–103 [hereinafter “Ten Theses”]. My immediate concerns can be read within the context of the development of a new system of regulation of legal education and training for providers of legal services in England and Wales pursuant to the Legal Services Act (2007), and the resulting Legal Education and Training Review (l e t r ) Report (2013). Like Harry Arthurs, I am actively involved in the local politics of legal education, but our contexts may be diverging. Sometimes, adopting a global pers­ pective allows one to fly higher for a while. I shall use examples from my own jurisdiction, but we are both aware of the enormous differences in legal education between our geographical contexts, despite some r­eciprocal influences.   2 Harry W. Arthurs, “‘Valour Rather Than Prudence’: Hard Times and Hard Choices for Canada’s Legal Academy,” Saskatchewan Law Review 76 (2013): 73–94.  3 Ibid.   4 Discussed in B T, 125–8.   5 See Harry W. Arthurs and Annie Bunting, “Socio-Legal Scholarship in Canada: A Review of the Field,” Journal of Law and Society 41 (2014): 487.

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  6 In retrospect, I think that some of the generalizations were too bold; the report was over-influenced by the new managerialism; and although it was contributed to by and directed to mainly “Southern” (including Latin American) academic lawyers, it had some unchallenged Western and Anglo-American biases in relation to both learning and “development.”   7 Lawrence M. Friedman, “Law, Lawyers and Popular Culture,” Yale Law Journal 98 (1980): 1579, at 1598.   8 This version is a gloss on a formulation made in the mid-1990s in the light of some subsequent developments and ideas since 1975 (see “What Are Law Schools For?” reprinted in LiC, ch. 15). I have made a few changes of wording for the sake of clarity. This paper does not deal with “global law degrees,” about which I am quite sceptical, nor with the larger subject of transnational legal education.   9 On the variety of legal education providers in Greater London in the late 1990s, see Clare Cowling, Records of Legal Education in Greater London (ial s , 1998). See http://www.aim25.ac.uk/cgi-bin/vcdf/detail?coll_id= 1564&inst_id=4, last accessed 24 July 2016. A preliminary census of institutions and programmes specialized to legal education in England and Wales includes the following broad, overlapping categories: a. universities’ and c f es’ law schools and law departments, in (i) public-sector and (ii) private-sector institutions; b. public- and private-sector education and training institutions teaching a substantial amount of law (e.g., police ­colleges, business schools, accountancy training, judicial colleges); c. private law tutors, cpd and commercial programmes, and distance learning; d. law in schools, public awareness, public understanding, and human rights education; e. specialist training institutions; f. other (e.g., summer courses, extramural offerings, access courses). 10 BT, 51–61. 11 This had implications for ideas about non-state law, normative and legal pluralism, and other theoretical issues. Interestingly, I do not recall that we had much difficulty in respect of avoiding defining these terms with precision – we finessed the difficulties quite neatly by treating “legal education” and “law” as field concepts, i.e., as rough labels for broad areas of study that should not be expected to do much work as analytical concepts. See William Twining, “Globalization and Legal Scholarship: A Response,” Transnational Legal Theory 4 (2014): 716–20. On other concepts that do not “travel well” across legal cultures and traditions, such as judge, lawyer, court, see g j p, ch. 2. 12 I prefer “total pictures” in order to avoid the idea of “system.” 13 On the traditional “primary school” and “professional models,” and ­varieties within them, see BT, 52–8, 82–5. On pervasive snobbery in

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discussions of “legal education,” see Twining, “Ten Theses.” On fallacies fortified by some of these models, see LiC, 300–1 (e.g., the football league model, the primary school image, the cheap subject fallacy). 14 “Law schools, perceived as multipurpose centers, can develop human resources and idealism needed to strengthen legal systems; they can develop research and intellectual direction; they can address problems in fields ranging from land reform to criminal justice; they can foster the development of indigenous languages as vehicles for the administration of law; they can assist institutions involved in training paraprofessionals; they can help to provide materials and encouragement for civic education about law in schools and more intelligent treatment of law in the media; they can organize, or help organize, advanced specialized legal education for professionals who must acquire particular kinds of skills and expertise” (i lc Report [1975], p. 39, para. 111). When I have in the past promoted the il c model, I have been criticized for expecting too much of a single university law school. Here I may have been at fault in not making clear that the ilc model is an ideal type for university law schools collectively in a larger (national, provincial, or regional) “system,” with plenty of space for collaboration, niche specialisms, and centres of excellence within it. 15 After considering various aspects of the problem of recruiting, training, and retaining law teachers, the Committee concluded as follows: “As legal education is perceived to be a panoply of programmes and educational efforts calling for diverse expertise, so traditional narrow perceptions of law teaching and legal scholarship may give way to appreciation of the spectrum of different teaching resources needed for a multi-purpose, complex law school. Some teachers will need extended multi-disciplinary training and research experience in social sciences. Some must be experienced litigators or public administrators (as well as capable instructors). Some will need other kinds of special technical expertise. Many should receive some kind of training in learning theory and educational methods and administration. It becomes increasingly important to see the ‘law teacher’ not as a single prototype, nor his career as following a single cursus honorum. The faculty of a law school might better be perceived as a team of specialists working in a complex system of education.” 16 il c , para. 45, at 23–4. 17 The i lc report was dealing with some countries in which there were then only one or two law schools and full-time academic lawyers had not reached a critical mass – hence the cautious phrasing. 18 This passage is an abbreviated version of Twining, “Ten Theses,” 96–8. 19 In England, in respect of the Ormrod process, famous for both its achievements and failures, the academic legal profession was roundly criticized

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for their self-interested, narrowly focused, and “feeble” contributions to the exercise. For example, Mr Justice Ormrod (as he then was) complained to me privately about the failure of academics to contribute to the work of his committee (Twining, “Ten Theses,” 94–6); see, further, Fiona Cownie and Raymond Cocks, ‘A Great and Noble Occupation’: The History of the Society of Legal Scholars (Oxford, uk : Hart Publishing, 2009), 131. 20 On the disastrous results of the Ormrod Committee’s misunderstanding of Treasury regulations governing higher education in England, see Cownie and Cocks, A Great and Noble Occupation. 21 This includes literature on educational theory, pedagogical technique, IT possibilities, distance learning, career advice, and much else besides. It also includes some comparative knowledge of arrangements and trends in other relevant professions, disciplines, and countries, and some futurology about trends and patterns likely to affect changes in the legal system and the delivery of legal services. A readable start on the latter is Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford, u k : Oxford University Press, 2010). 22 This does not necessarily require formal certification, which might entrench a narrow orthodoxy. It has been and can be primarily a matter for self-education, reading, and attending courses and events. Legal education clinics, pioneered in the United States and Canada, spread around the Commonwealth. For a time, the United Kingdom had an excellent National Centre for Legal Education at Warwick – unfortunately, this became the victim of financial cuts. The claims of specialists in Education as a discipline to be the generic experts on all aspects tend to edge out the crucial histories and contexts of legal education. 23 In England and Wales, significant moves have been taken in this direction, largely interstitially and without fanfare over the last forty years or so. Since the 1990s, a great deal of the work for reviews of professional legal education and training has in fact been done by academic lawyers. This is especially clear in the case of letr (see Twining, “Ten Theses”), for whom the four lead authors of the review could claim just these kinds of expertise. Such research is by no means restricted to degree-level education. For example, in relation to public legal values, private ethics, professional and judicial legal ethics, and professional responsibility and discipline (categories that are too often conflated), the literature has burgeoned transnationally, as is illustrated by the variety of contributions to modern specialist journals on legal education, legal services, and “legal ethics.” 24 Especially ibid.

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25 This is based upon two addresses delivered by Arthurs in 2005 and 2009: (1) “The Spider, the Bee, the Snail and the Camel: Legal Knowledge, Practise, Culture, Institutions and Power in a Changing World” (York University – Osgoode Hall Law School: clpe Research Paper No. 1, 2005); and (2) “Law and Learning in an Era of Globalization” (Osgoode Hall Law School: clpe Research Paper No. 22 / 09). These may not fully represent Harry Arthurs’s most recent views, but they are still well worth reading. See also Harry W. Arthurs, “Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields,” Canadian Journal of Law and Society 12 (1998): 219–46.   The abstract for (1) reads as follows: “This keynote address, delivered on the occasion of the 5th Canadian Graduate Law Students Conference, held in Toronto on May 6–7, 2005, addresses the challenges for legal theory, legal practice and education in a globalized environment. Legal education is described as deeply embedded in the changing political economy of legal scholarship and legal practice. With increased subjection of law schools to allegedly clearly definable market demands, strong winds blow through the law schools in North-America and elsewhere. From the L LB  /  J D programme through graduate studies, curricular reform becomes enmeshed in larger considerations of greater inter-school competition and greater compatibility to the outside world. In the midst of it, the aims of the law, its potential and its limits, move out of sight.” (121)   The abstract for (2) reads as follows: “This paper explores the ways in which globalization, as a dominant influence on political economy, makes its presence felt on legal education and research. In particular, it questions whether law schools have maintained agency in the choice to embrace ­globalization in their curricula, scholarship and general orientation or whether law schools have been forced to bend to the realities of the global economy. While neo-liberal ‘globalization of the mind’ has shifted assumptions about the project of law and entrenched a ‘new normal’ in legal education and scholarship, the McGill curriculum – based on socalled trans­systemic legal education – offers the promise of professional and intellectual formation based on law’s radical indeterminacy in an era of globalization, neo-liberalism and law without the state.” 26 The Tilburg Law School is the most prominent analogue in Europe. 27 See g j p, p. 14 and ch. 8. 28 See g ls .

pa r t v

Citizens and Markets

14 Workplace Law without the State? Kevin Banks Faculty of Law, Queen’s University

In a series of articles now spanning almost twenty years, Harry Arthurs has argued that the “new economy” is leaving labour law – and workplace law more generally – increasingly without norms authoritatively pronounced and enforced by state institutions.1 In his analysis, the new economy and its consequences for social, economic, and political life have left states in a politically weak position to enact and enforce workplace laws. Further, globalization powerfully constrains the prospects for their renewal by generating a “conditioning framework” that habituates us to a particular set of values and baseline assumptions about what is possible and desirable: that the nation’s economy, the quality of life it can sustain, and the personal well-being of each worker and entrepreneur depend upon a favourable business climate; that capital is global, highly mobile, and climate-sensitive; that investors will not come to or remain in Canada, or invest in given Canadian enterprises, unless assured of favourable prospects; and that in the workplace, as in the political forum, one acts at one’s peril to diminish those prospects.2 In his academic writings, Harry argues that this framework derives its force from two potential sources. On the one hand, enhanced capital mobility may enable investors and employers to bargain harder with governments and workers over the content of state- and workplacelevel labour laws, by expressly or implicitly threatening to relocate.

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On the other, ideas about globalization may also independently shape perceptions held by workers, employers, policy-makers, and politicians of what the possibilities for such laws are. Within this “globalization of the mind,” the economy becomes the “secret police of our desires.”3 Nevertheless, in Fairness at Work, his 2006 report to the Canadian federal government on modernizing the labour standards under the Canada Labour Code, Harry noted that states appear not to have lost international market share or investment as a result of specific labour protections that raise production costs, and concluded that the Canadian federal government has significant room to manoeuvre in setting labour standards.4 His analysis and its recommendations suggested that governments can act upon the needs and desires of working Canadians notwithstanding globalization, if they want to, and that clearly stating this may be a first step towards making it happen. However, as Harry would later remark, the Report “sank like a stone.”5 This may have been nothing more than an artefact of the political conditions of the time. But it may suggest, as Harry does at times,6 that governments really cannot act on such recommendations without the risk of capital flight. In this chapter, I will argue that states are more constrained by a “globalization of the mind” than by hard economic facts. On the other hand, collective bargaining often finds itself at the hard edges of economic realities. As a result, insofar as it remains a potentially progressive actor, it is the state that increasingly finds itself without labour law, and indeed without labour, rather than the other way around. Progressives might therefore turn their attention to how democratic politics might once again envision, mobilize around, and deliberate upon better alternatives. 1 t h e s tat e c a n s t i l l r e g u l at e wo r k p l ac e s , w h e n i t wa n t s to

Fears that globalization would lead to a “race to the bottom” or, more modestly, to a policy convergence on low labour standards have influenced public policy debate in industrialized countries since the mid-nineteenth century.7 They rest fundamentally on four propositions: (1) that unit labour costs matter in international competition for jobs and investment; (2) that jobs and investment can and do

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move towards jurisdictions with low unit labour costs; (3) that labour and employment laws increase unit labour costs enough to matter in this competition; and (4) that as a result, international economic integration will drive a global market in workplace regulation.8 For this logic to operate, at least two conditions must be met. First, the labour and employment laws in question must actually raise unit labour costs. This means that they are enforced, and raise employer costs in a way that is neither charged back to workers nor offset by productivity gains. Second, the unit labour cost increases attributable to workplace laws must be significant in relation to other factors affecting decisions of where to locate jobs and investment. There have been times and still are places within the modern global economy in which these conditions have held or now hold, and, as a result, the development of protective workplace laws has been checked, or levels of workplace legal protection have declined.9 Yet, for the most part, there is little evidence of this in the industri­ alized world.10 The reasons are many.11 Workplace laws often do not raise unit labour costs. Sometimes, the costs of legal compliance are simply charged back to workers in the form of lower wages (which may, nonetheless, leave workers better off if legislation is providing higher-value goods that cannot be contracted for individually, such as health and safety protection). More often than contemporary economic discourse tends to suggest, well-designed laws can improve productivity.12 Even where legislation raises unit costs, as it no doubt sometimes does, other factors tend to matter much more to inter­national competitiveness. These include access to large markets, resource and technical endowments, good infrastructure, a skilled workforce, political stability, and the rule of law.13 Moreover, labour costs are often a relatively small fraction of overall cost structures in the leading export industries of industrialized countries, which tend to be capital-intensive. Some of the most competitive countries in the world, according to the World Economic Forum, rely on good government, the quality of their education and health systems, and a sound financial sector as competitive advantages, while maintaining labour and employment laws that employers find onerous by international standards.14 There is, in fact, no evidence that Canadian governments have been required to change their laws to compete internationally. My own review of changes to labour and employment legislation

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across Cana­da between 2001 and 2011 found that, in quantitative terms, reforms tilted heavily towards adding – rather than removing  – employee protections.15 Laws have responded, albeit cautiously, to the issues of  the day, including work-life conflict, the erosion of the value of the minimum wage, and the effects of bullying in the workplace. Even in areas of the law that tend unequivocally to raise costs, such as collective-bargaining protection or rights to overtime pay, one finds no pattern of change attributable to economic integration. Instead, what one observes in the laws affecting traded sectors is that reforms move in different directions corresponding to the political stripe of governments. I do not take issue with Harry’s observations that the profile, prestige, and enforcement budgets of labour ministries in Canada have suffered in recent decades.16 But in the light of the foregoing analysis, there seems to be no reason to attribute this decline to matters of economic necessity. To the extent that globalization matters to the capacity of the state to regulate the workplace, its effects would seem to be derived from how it is understood in the policy discourse of technocrats, politicians, and the general public, rather than from its economic logic. 2 b u t , i n i m p o r ta n t ways , t h e s tat e i s   w i t h o u t l a b o u r l aw

It is important to put this observation in context, however. As Harry would no doubt remind us, an analysis of the effects of globalization on workplace law is incomplete without turning our attention to law that is “without the state” in the sense that it is privately bargained. Here, we find that conditions are quite different. In internationally integrated industries, employers are often in a position to reproduce both the technological sophistication of production facilities and the training of their workforce in many locations around the world. Compensation costs may matter a great deal at the margin in determining the location of production. The offshoring / de-localization of manufacturing is, of course, well advanced in the industrialized world. The offshoring / de-localization of services has only just begun, and is likely to accelerate with increased Internet connectivity.17 The growing mobility of investment and production thus enhances employer bargaining power. These mobility effects are amplified by changes in the relative scarcities of capital and labour in the internationally traded economy. As

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Richard Freeman points out, the integration of China, India, and the former Communist Bloc countries into the international trading system effectively doubled the global labour supply while adding relatively little capital.18 Emerging economies in which labour is relatively abundant often have significant unit labour cost advantages in particular economic sectors. The forces of supply and demand can, therefore, exert downward pressure on wages in traded industries. Furthermore, unions find it harder not only to get more for their members, but also to pursue redistribution within the workforce. The globalization of production has been accompanied by a wave of skill-biased technological change that generates higher returns to skill, and thus promotes greater dispersion in earnings among workers. These effects may have been compounded in countries with unequal access to higher education, contributing significantly to increased inequality within the workforce.19 Not surprisingly, then, the globalization of production appears to be, in part, responsible for the stagnation of middle-class incomes, increased income inequality, and an increase in capital’s share of national income in the industrialized world.20 The effects of the globalization of production on the workplace bargain are further compounded by three developments elsewhere that have left less money on the table for employers and workers to divide up. First, recent decades have witnessed what Thomas Piketty has termed the rise of the “super-manager” in the Anglo-American world.21 There, changes in the norms and practices governing executive compensation have enabled top managers at major private corporations to capture a very disproportionate share of the gains from economic growth in recent decades, and are the primary reason for increased income inequality in recent decades.22 Second, long-term declines in demographic and economic growth in the industrialized world have caused an increase in the ratio of capital stock to national income, while technological advances continue to enable capital to be put to a growing number of valuable purposes. As a result, capital’s share of national income will tend to increase. Since ownership of capital is highly unequal, and negligible in the bottom half of the income distribution, these long-term developments stand to increase income inequality dramatically.23 Finally, financial globalization and the resulting mobility of finance capital are associated with reductions in the wage share of national incomes.24 While the reasons for this require more study, it appears that, in the industrialized world, they

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include the switch in the 1980s to corporate governance systems based upon maximizing shareholder value and the rise of aggressive returns-oriented institutions, including private equity funds, hedge funds, and institutional investors that put pressure on firms to increase profits, especially in the short term.25 As a result, a greater share of corporate profits is paid out as dividends. These last two developments are good candidates to be the most significant causes of a decline in the share of national income accruing to labour (and a corresponding increase in the share accruing to capital) across the industrialized world. This is not to say that labour laws no longer influence income distribution. Labour laws can influence union density rates, and higher union density remains associated with a more egalitarian distribution of labour income, and with smaller reductions in the wage share of national income.26 Other workplace laws can also operate in the service of equality. Anti-discrimination laws can alleviate wage gaps arising from discrimination against women and minority groups.27 Laws reducing the gap between the wages, benefits, and other protections available to permanent and temporary workers also stand to reduce inequality.28 But it does appear that, increasingly, the strongest dynamics responsible for the growing inequality in the industrialized world are far removed from the workplace, as are the major corresponding policy levers and debates. Executive compensation is as much or more a matter of corporate governance than it is of employment contract. Equal opportunity and equitable income distribution in the labour market have come to depend more heavily than ever on equality of access to higher education, access to affordable child care, and publicly supported pension and benefit programmes. Countering the erosion of labour’s share in national income may depend more on tax policy or financial sector regulation than on law in the workplace. Workplace bargaining, once able to deliver equality of opportunity and income redistribution to a significant fraction of the workforce, now finds these goals increasingly out of reach. 3 crisis and opportunity

As Harry points out, this presents labour law with a crisis of purpose.29 It is a crisis that raises profound questions for workplace law more generally, with the potential to land difficult public policy

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problems in the lap of the state. Labour law can continue to enable workers to organize, bargain collectively, and thereby gain access to a measure of procedural justice, voice, and enhancements in pay and benefits. But it is impaired as a means of enabling workers to obtain a fair share – however defined – of the prosperity generated by a modern economy, a purpose long underpinning labour law’s claims to centrality in bringing social justice to modern capitalist democracies. The effects of the new economy on labour law may thus call for a rethinking of both workplace law and social policy – of what cons­ titutes a just bargain in the workplace, of what constitutes social justice for working people, and of which institutions inside and outside the workplace might implement it. This is not an impossible task, and indeed, scholarship and research have already made significant contributions towards accomplishing it. Some have located significant parts of workplace law within the landscape of human rights.30 Others have turned towards notions of human dignity or decency at work.31 Some have extended these inquiries, asking what capabilities individuals should carry into the workplace in order to have full opportunities to develop as human beings.32 While much work remains to be done, it is probably fair to say that such intellectual foundations will prove capable of justifying both the facilitation of collective bargaining and the continued and evolving direct regulation of the employment relationship. The more difficult questions may lie in the reordering of implementing institutions. It is important to ask what responsibilities employers should bear and which ones should be socialized in the light of the increased competitiveness and volatility of product and service markets. We should consider whether new or changed models of union representation might provide more workers with access to a voice in the workplace than have one under the current North American dispensation, in which decentralized union strength interacts very uneasily with the employer incentives generated by integrated product and service markets.33 It is imperative to ask how workplace rules can be set, modified where appropriate, and effectively enforced, particularly in the absence of union representation. Here, again, researchers have begun to generate well-reasoned and viable alternatives.34 In Fairness at Work, Harry explored such questions as far as his mandate allowed.35 It is true that none of these inquiries is likely to lead to a workplace law capable of the robust redistribution once achieved at the

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bargaining table. But redistribution is returning elsewhere to the political agenda in industrialized countries. Growing inequality preoccupies intellectual leaders and has made a runaway best-seller out of a nearly seven-hundred-page economic treatise.36 There are coherent proposals for the regulation of finance,37 the taxation of capital,38 the restructuring of the global trading system,39 the management of financial crises so as to distribute their costs more evenly,40 and the reform of executive compensation.41 It is not difficult to see how renewed workplace laws could form part of a larger policy vision. I would submit that the real question is not whether attractive, realistic, and progressive options for labour law, workplace law, and complementary social and economic policies and programmes and can and will be devised, but rather when or even whether democratic politics can grasp and implement them. 4 w h o w i l l d e l i b e r at e u p o n

a n d ac t f o r   s o c i a l j u s t i c e ?

Here, we need to take Harry’s recent and, by his own admission, somewhat lugubrious assessment very seriously.42 As he points out, the working class, if it ever was constituted and conscious as such, is no longer. Manufacturing, the geographic centre of union organizing and worker solidarity, is now globally dispersed into supply chains. Working people are increasingly dispersed in other ways too, both legally (employee – temporary, part-time, or permanent; own-account self-employed; dependent contractor; etc.) and culturally (through identity politics, consumerism, and so on). To this, I would add that, in our contemporary media environment, the dispersal is also intellectual. We are scarcely able to sort and absorb the flood of constantly available information and distractions. Faced with incessant and effective bids for our attention, we do not linger on complex problems. We move on, as a matter of cultural practice. As Thomas de Zengotita observes, depth is to our lives what dead air is to a talk show.43 How then are complex solutions to complex social problems to find a time and place for democratic deliberation and collective mobilization? Those who care about the future of workplace law thus find themselves seeking a new legal landscape while carrying a burden of doubt. But here we continue to find Harry, steadfast, patient, and vigorous despite his misgivings, directing attention to the “defiant publics” arising in response to the most recent financial crisis, to

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advances in economic theory and empirical research revealing capitalism’s instabilities and flaws, to encouraging the creativity to propose plausible improvements, and to the importance of freedom of association, expression, and assembly to creating a safe space within which critics and protesters can do their work.44 And we are grateful for his insight, his perseverance, and his company. N ot es   1 Harry W. Arthurs, “Labour Law without the State?” University of Toronto Law Journal 46 (1995): 1; Arthurs, “Landscape and Memory: Labour Law, Legal Pluralism and Globalization,” in Advancing Theory in Labour Law in a Global Context, ed. Ton Wilthagen (Amsterdam: North Holland Press, 1998); Arthurs, “By What Immortal Hand or Eye? – Who Will Redraw the Boundaries of Labour Law?” in Boundaries and Frontiers of Labour Law, ed. Guy Davidov and Brian Langille (Oxford, uk , and Portland, or : Hart Publishing, 2006); Arthurs, “The Transformation of Work, the Disappearance of ‘Workers’, and the Future of Workplace Regulation” (Paper delivered at St. John’s College, University of Oxford, 26 November 2009); Arthurs, “Labour Law after Labour,” in The Idea of Labour Law, ed. Guy Davidov and Brian Langille (New York: Oxford University Press, 2011); Arthurs, “Making Bricks without Straw: The Creation of a Transnational Labour Regime,” Osgoode Hall Law School Comparative Research in Law and Political Economy Research Paper no. 28 / 2012.   2 Arthurs, “Labour Law without the State?” 26. The concept of a condi­ tioning framework is borrowed from Ricardo Grinspun and Robert Kreklewich, “Consolidating Neoliberal Reforms: ‘Free Trade’ as a Conditioning Framework,” Studies in Political Economy 43 (1994): 33.   3 Arthurs, “Landscape and Memory,” 22.   4 Federal Labour Standards Review Commission, Fairness at Work – Labour Standards for the 21st Century (Gatineau, qc : Human Resources and Skills Development Canada, 2006), 31–4.   5 Arthurs, “The Transformation of Work,” 9.   6 Arthurs, “Making Bricks without Straw,” 6.   7 See John W. Follows, Antecedents of the International Labour Organization (Oxford, u k: Clarendon Press, 1951).   8 Kevin Banks, “Must Canada Change Its Labour and Employment Laws to Compete with the United States?” Queen’s Law Journal 38 (2013): 419, 427.

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 9 Follows, Antecedents of the International Labour Organization; Banks, “Must Canada Change Its Labour and Employment Laws?” 433–46. 10 Banks, “Must Canada Change Its Labour and Employment Laws?” 436–46. 11 Ibid., 429–32. 12 Ibid., 450–3. 13 Ibid., 430, 448–51. 14 Ibid., 449. 15 Ibid., 453–9. 16 Arthurs, “By What Immortal Hand or Eye?” 17 Alan Blinder, “Offshoring: The Next Industrial Revolution?” Foreign Affairs 85 (April / May 2006): 113–28. 18 Richard Freeman, “The Challenge of the Growing Globalization of Labor Markets to Economic and Social Policy,” in Global Capitalism Unbound: Winners and Losers from Offshore Outsourcing, ed. Eva Paus (New York: Palgrave MacMillan, 2007), 23. 19 Claudia Goldin and Lawrence Katz, The Race between Education and Technology: The Evolution of U.S. Educational Wage Differentials, 1890– 2005 (Cambridge, m a: Belknap Press, 2010). 20 International Labour Organization, Global Wage Report 2012 / 3 (Geneva: International Labour Organization, 2013), 49–50; Martin Wolf, Why Glo­ balization Works (New Haven, ct: Yale University Press, 2004), 166–70. 21 Thomas Piketty, Capital in the Twenty-First Century (Cambridge, ma : Belknap Harvard, 2014), 315. 22 Ibid. 23 Ibid., ch. 5, 6, 10. 24 International Labour Organization, Global Wage Report 2012 / 3, 49, and sources cited therein. 25 Ibid., 51. 26 Simon Deakin, Jonas Malmberg, and Prabirjit Sarkar, “How Do Labour Laws Affect Unemployment and the Labour Share of National Income?” International Labour Review 153 (2014): 1; Isabell Koske, Jean-Marc Fournier, and Isabelle Wanner, “The Distribution of Labour Income,” in Income Inequality in o e c d Countries – What Are the Drivers and Policy Options? ed. Peter Hoeller and Isabelle Journard (Singapore: World Scientific Publishing, 2014). 27 Koske et al., “The Distribution of Labour Income,” 62–3. 28 Ibid., 57–8. 29 Arthurs, “Labour Law without Labour,” 16–18. 30 See, for a discussion, Judy Fudge, “The New Discourse of Labor Rights: From Social to Fundamental Rights?” Comparative Labor Law and Policy Journal 29 (2007): 29.

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31 Federal Labour Standards Review Commission, Fairness at Work, 47. 32 See, for example, Virginia Mantouvalou, “Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an Inte­ grated Approach to Interpretation,” Human Rights Law Review 13 (2013): 529. 33 See Matthew Dimick, “Productive Unionism,” U.C. Irvine Law Review 4 (2014): 679. 34 See, for example, Cynthia Estlund, Regoverning the Workplace: From SelfRegulation to Co-Regulation (New Haven, c t: Yale University Press, 2010); David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (Cambridge, ma : Harvard University Press, 2014). 35 Federal Labour Standards Review Commission, Fairness at Work, especially in ch. 7. 36 Emily Cohn, “Thomas Picketty Is No. 1 on Amazon Right Now,” Huffington Post (22 April 2014), http://www.huffingtonpost. com / 2014 / 04 / 22 / thomas-piketty-amazon_n_5191566.html. 37 See, for example, Joseph Stiglitz, The Price of Inequality: How Today’s Divided Society Endangers Our Future (New York: W.W. Norton, 2012), 336–40. 38 See, for example, Piketty, Capital in the Twenty-First Century, ch. 14–15. 39 See, for example, Dani Rodrik, One Economics, Many Recipes: Globa­l­ ization, Institutions and Economic Growth (Princeton, nj : Princeton University Press, 2007), ch. 7–9; Joseph Stiglitz, Making Globalization Work (New York: W.W. Norton, 2007). 40 See, for example, Roberto Mangabeira Unger, “The Really New Bretton Woods,” http://www.robertounger.com / english / pdfs / progressive4.pdf, last accessed 24 July 2016. 41 See, for example, Roger Martin, Fixing the Game: Bubbles, Crashes and What Capitalism Can Learn from the n f l (Cambridge, ma : Harvard Business Review, 2011); Lynn Stout, “Killing Conscience: The Unintended Behavioral Consequences of ‘Pay For Performance,’” Journal of Corporation Law 39 (2014): 525. 42 Arthurs, “Making Bricks without Straw.” 43 Thomas de Zengotita, “The Numbing of the American Mind: Culture as Anaesthetic,” Harper’s Magazine (April 2002). 44 Harry W. Arthurs, “The ‘Majestic Equality’ of the Law: Why Constitutional Strategies Do Not Produce Equality” (Nantes, France: Workshop on Income Inequality, Institute for Advanced Studies, 2014), 12–14.

15 Reform in Small Steps: The Case of the Dependent Contractor Guy Davidov Hebrew University of Jerusalem, Israel

1 introduction

Should labour law scholarship engage with suggesting incremental improvements to the law? Harry Arthurs would probably answer that there is not much point in doing so, because the law does not matter much. Harry has been consistently sceptical about the impact of legislation and case law, arguing that much more important in real life are the rules created in workplaces by the parties themselves, often through power struggles, sometimes unilaterally by the employer, and often informally. Such rules are also shaped by external factors, of course, but it is the political economy that determines the actual rights and benefits of workers much more than legislatures and judges.1 Harry is surely right to be sceptical about the law. At the same time, however, experience (especially from other countries) shows that labour law does matter.2 The impact may be limited, but it can still make a difference to the lives of many workers. And one clear example of the ability of academics to influence the law, and the ability of law to influence the lives of workers, stems from Harry’s own contribution concerning dependent contractors – an intermediate category between “employees” and “independent contractors.” The binary divide between the two traditional categories has crucial importance for people who work for others: either they enjoy the protection of

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numerous regulations (if they fall into the scope of “employees”), or they fall completely out of labour law’s sight. Yet, in real life, the distinctions between different workers are hardly binary. So, the need for a more nuanced regulatory apparatus becomes clear. The goal of this chapter is to assess briefly two concrete proposals made by Harry for the adoption of an intermediate category between employees and independent contractors. I start by describing the original proposal, then move to explain the logic behind intermediate categories in this area, before assessing the Canadian legislated definition (which adopted Harry’s proposal to some extent), explaining its deficiencies. I then move to analyze a more recent proposal made by Harry for the adoption of an intermediate category (along the same lines), suggesting some amendments that could further improve it. 2 f r o m l aw r e v i e w to l aw

In 1965, more than half a century ago, Harry published an article analyzing the situation of those who were legally considered “independent contractors” but who, in practice, were economically vulnerable, just like employees.3 He called this group of workers “dependent contractors” (following Swedish legislation and literature), and showed how competition laws that prevent them from bargaining collectively are problematic. He argued that the law should be changed to conform better to economic reality and thereby to redress the unequal distribution of private power, a problem that affected dependent contractors alongside employees. This was a relatively rare incident; Harry’s insightful articles usually offer a critical analysis of the law, rather than making concrete reform proposals – as one might expect from his scepticism.4 Nonetheless, this particular call for reform was exceptionally successful. Very few academics can claim that their work has led directly to significant legislative changes. Harry’s article had this remarkable impact. Between 1972 and 1977, seven Canadian jurisdictions adopted provisions allowing dependent contractors to bargain collectively.5 The direct result was to bring some people who would otherwise be considered independent contractors partially under the auspices of labour law. For example, truck owner-operators working for one major client could now join forces with others in their situation, bargain collectively, and (if need be) strike – all methods that are illegal for independent contractors.

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How much difference did this make? It is difficult to measure it empirically. It has been argued that adding the new category was not necessary, because by the mid-1970s, there was a growing tendency to interpret the term “employee” in a broader and more purposive fashion anyway (in some part, thanks to Harry’s article).6 However, it is doubted that these developments were so sweeping,7 and, in any case, the new category has opened the way for further broadening. Thus, for example, at least in some jurisdictions, even those who have their own employees can be dependent contractors,8 which was surely not possible within the concept of “employee” as interpreted by Cana­dian courts. Further evidence that the new category makes a difference can be gleaned from the fact that commissions reviewing employment laws in British Columbia and at the federal level have recommended using similar categories to extend the coverage of employment standards as well.9 Such recommendations, which were based upon in-depth reviews of problems encountered by workers in practice, suggest that the scope of the “employee” category is far from satisfactory. 3 w h y a n ot h e r l e g a l c at e g o r y ?

In recent years, a growing number of countries have adopted an intermediate category similar to dependent contractors.10 In some cases, this was introduced as a “solution” to the failure of courts to interpret the term “employee” in a way that would not exclude numerous workers in atypical arrangements. In such cases, the more appropriate solution would have been to correct the failure directly and thereby broaden the “employee” category. In other legal systems, however, legislatures have recognized the need for an intermediate category, unrelated to any broadening (or lack thereof) of the “employee” group. Generally, an intermediate category only makes sense when looking “from above” at a spectrum of regulations.11 When one considers a specific arrangement (say, a right to overtime payments, or vacations, or a minimum wage) then either it applies, or it does not. For the purpose of this specific regulation, there must be a binary divide (does it apply in a given case, yes or no?). This binary divide is customarily described by using the terms “employee” (for “yes”) and “independent contractor” (for “no”). However, assume that there are ten different regulations related to work, and three different groups

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of workers: one that, based upon its characteristics and the purpose of these regulations, should be granted access to all ten regulations; another that, for the same reasons, should be excluded from coverage of all ten regulations; and a third group that should enjoy only some of the regulations (say, five of them), but not others. If this scenario is realistic, then it makes perfect sense to create a separate category for the third group, and to allow people in this group to know that they are entitled to certain work-related rights, but not others.12 An intermediate category is, therefore, justified – and indeed required – if (a) labour and employment laws can be separated into groups of regulations with different purposes; (b) workers can be separated into groups with different characteristics; and (c) the distinguishing characteristics of the workers’ groups are directly connected with the distinguishing purposes of the regulations’ groups. Taking second-order concerns of efficiency and maximizing compliance into consideration, I would also add that (d) a good balance must be struck between universalism and selectivity, based upon the understanding that a system providing the same rights to all (universalism) makes it easiest for people to know their rights and obligations, whereas, in contrast, a more nuanced system (with selected laws applied only to selected groups) ensures better targeting of laws to the people who really need them, and prevents the exclusion of people (such as dependent contractors) who need only partial protection.13 Sounds complex, perhaps, but, in fact, the first two conditions (a and b) are quite obvious. Different laws have different purposes. To be sure, labour and employment laws have an overarching common purpose (whether to address the inequality of bargaining power, or to confront the vulnerability of employees, or to correct market failures,  or to enhance capabilities, and so on).14 But they also have specific purposes; the justifications for unjust dismissal laws are not exactly the same as the justifications for working-hour regulations, for example. They can be grouped together in several different ways based upon shared goals. Workers also have many different characteristics, depending on their arrangements with their employers, and can be separated into groups in various ways. The second-order condition (d) is also relatively easy to meet in this case. Too many different categories would not achieve a good balance between universalism and selectivity (creating too much indeterminacy); but adding only one intermediate category is very reasonable in this regard. The main question remaining, therefore, is (condition c above) whether there is

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a connection between a specific intermediate group (in terms of its characteristics) and the goals of some labour laws. Dependency appears to offer this connection. It is not only one of the major characteristics of employment relationships; it also characterizes other work relations. There is a significant group of people who are dependent on one single (or one major) “client,” but do not share the other major characteristic of “employees” – subordination (or more broadly, being subject to a structure of governance with democratic deficits).15 At the same time, dependency is a vulnerability that explains and justifies many work-related regulations, but not all (others can be explained by reference to subordination). There is, therefore, a clear connection between the characteristic and the purpose: workers who are dependent on one single (or one major) client should be included within the coverage of laws that are designed to respond to such dependency. It does not have to be the only purpose of these regulations, but must be at least one of the purposes.16 Consider the minimum wage, for example. There are several justifications for mandating the payment of a minimum wage, but, at least to some extent, it seems connected to the problem of dependency. If you are dependent on a single employer, this vulnerability means that you have little or no bargaining power, and no ability to spread risks. If you have several clients, you are much more likely to be able to secure a decent wage, or at least you can minimize the risk of non-decent wages by contracting with several different clients. In contrast, subordination is not necessarily relevant. The need for minimum-wage protection is the same whether or not you are subject to daily control or bureaucratic rules of the organization. Consider similarly collective-bargaining laws. The idea behind a law which both allows and encourages collective bargaining is to allow workers who are dependent on one employer to join forces and attempt to equalize their bargaining power. This seems relevant and justified for all workers in a position of dependency, whether they are also subject to subordination or not. Consider, in contrast, maximum hours regulations, or privacy regulations. These seem justified for workers in a condition of subordination. If you control your own time and are not integrated in the employer’s organization, such regulations should not apply; whether there is dependency or not is immaterial. Seen in this light, it is probably the case that most labour and employment laws should cover not only employees but also dependent contractors. But not all; so there is reason to keep the distinction.

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People who have their own small business – with a significant degree of independence concerning the running of this business – are not “employees,” because they are not in a condition of subordination, but, if they are dependent for most of their income on a single client, they need the protection of some (indeed many) labour and employment laws. 4 assessing the canadian definition

If the analysis above is accepted, Canadian “dependent contractor” laws are deficient in two important respects.17 First, they are all limited to collective-bargaining regulations. It is difficult to explain why people who are in a position of dependency and need the protection of a union do not simultaneously need the protection of minimumwage regulations, or wage-protection provisions (for example), for the very same reasons. Second, for some reason, all Canadian jurisdictions with “dependent contractor” provisions appear to require a degree of subordination as well. In Ontario, for example, a dependent contractor is someone who “performs work or services for another person … in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor.”18 Such definitions do not settle for dependency, but also require “an obligation to perform duties” that resembles an employment relationship. This was (not surprisingly) interpreted by labour boards, in some jurisdictions at least, as a degree of subordination19 – a requirement which is difficult to justify in my view. If the impact of the category was minimal, as argued by Michael Bendel,20 this is probably the main reason. Harry’s proposal did not include the last limitation. He suggested the adoption of the Swedish definition, which expanded collectivebargaining rights to every person “that performs work for another person and thereby occupies in relation to that person a position of dependence essentially similar to that occupied by an employee in relation to his employer.”21 Extending protection to those in a position of dependency – even without subordination – would go a long way not only to connecting the scope of labour and employment laws with their purpose, but also to curbing evasion attempts by employers. It is relatively easy to change a relationship in a way that minimizes subordination, but much less easy to hide dependency where it exists.

250 Guy Davidov

As for the first limitation mentioned above – the inclusion of “dependent contractor” provisions only in collective-bargaining laws – it was in line with Harry’s proposal at the time. However, in his 2006 report to the federal government (the “Arthurs Report”), Harry recommended an extension of the same idea to employment standards. Interestingly, he preferred not to use the same concept, but a different one – that of “autonomous workers” – although he admitted that the categories were very similar.22 5 t h e “ au to n o m o u s wo r k e r ” p r o p o s a l

The Arthurs Report does not include many details about the proposed new category. This is understandable, given that it covers a broad range of issues and that this is just a small part of them. However, Harry’s newest proposal does have several interesting components. First, it avoids the difficult question of how to place the line between the new group and the other legal categories (employees on one side and independent contractors, on the other) by suggesting defining the group based upon similarity to employees: “Autonomous workers” should be defined … as including persons who perform services comparable to those provided by employees and under similar conditions, but whose contractual arrangements with the employer distinguish them from “employees.”23 Second, although it is made clear that people in this intermediate group will only be eligible for limited coverage, the Report avoids the question of which regulations should apply, instead proposing that this will be left for ministerial decision. Third, it is clarified that “autonomous workers” should not be treated as one group; rather, the minister should make sector-specific determinations about which regulations should be extended for each subgroup. Fourth and finally, the Report notes that some “autonomous workers” prefer to be left outside the scope of employment law altogether – for various reasons – and such preferences should be taken into consideration (although they are not in themselves determinative).24 I agree entirely with Harry that employment standards should be extended, in the sense that some of them should apply also to workers who are not employees. And I agree that the best technique to achieve that is through an intermediate category. However, I find the four specific propositions described above problematical.

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First, regarding the distinction between the categories (or how to define the intermediate category): the reliance on “similarity” to employees is likely to lead to narrowing this category without justification, by requiring similarity in terms of subordination as well. Admittedly, the term “autonomous” seems to refer to a lack of subordination (not being part of the organization and not being subject to the control of an employer). But if the idea is to base the category upon dependency and not require subordination, why not say so explicitly? Second, concerning the choice of the specific regulations that will apply: I can see the advantage in giving the minister some flexibility to make corrections on the margins; but giving the minister the authority to make these determinations in the first place, especially without any guidance, leaves too much to chance.25 A list of regulations and / or provisions tied to dependency should be attached to the new category, at least as a default starting point. Third, the idea of ensuring sensitivity to context and to unique circumstances and needs, and accordingly creating sector-specific regimes, is logical and understandable in principle. However, bearing in mind also the need to ensure determinacy, to allow people to know their rights and obligations, and to minimize problems of noncompliance, a balance must be struck between universalism and selectivity (as noted above). Some degree of selectivity in terms of sector-specific regulations could be justified,26 but breaking the intermediate group into numerous subgroups takes this too far. Finally, why should we give any weight to a worker’s preference not to be covered by employment standards? The Report gives several explanations for the preference of some self-employed workers not to enjoy such protection. One is that they see themselves as entrepreneurs “and want to be free to hire more employees, expand their operations and increase their profits.”27 Others “value the freedom to work on their own, where and for whom they choose.”28 It is not clear, however, why this is relevant. Surely, there is no intention to limit the ability of small businesses to expand, or to engage with any number of clients as they like. If the law stipulates that people in a certain arrangement (for example, dependency on one client) are covered by some employment laws, it does not mean that they are prevented from changing their arrangements. If you are not dependent on one client anymore, you will not be covered. If you are dependent, you will enjoy some protection, and it does not limit your ability to change your work arrangements.

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Another reason mentioned in the Report for the lack of enthusiasm among some of the self-employed (specifically, truck owner-­operators) is the fact that, as independent contractors, they enjoy the ability to deduct expenses – i.e., they enjoy some tax advantages not available to employees.29 However, from a purposive point of view (which the Report certainly adopts in other parts), there is no necessary connection between the tax regime and employment standards. One could be an “employee” for the purposes of employment standards and simultaneously an independent contractor for tax purposes. And, in any case, we do not usually allow people to choose the tax regime to which they are subject. In tax law just as in employment law, you can choose the work arrangements (or other economic arrangements) that you wish, but the legal implications are determined by law and not by choice. The Report indeed concludes that “autonomous workers” should be covered (to some extent) by employment standards, whether they want to be or not – to protect their basic right to decent working conditions, and also to protect employees from unfair competition.30 It is therefore surprising that the Report goes on to say that although some autonomous workers in the trucking sector are apparently anxious not to be covered … other autonomous workers in other sectors may have different needs or views. It should be possible to treat the two groups differently.31 I would argue that a worker’s preferences about the legal rules that should apply to him or her are entirely irrelevant to the normative discussion in this context. 6 conclusion

Harry spent some of his celebrated career arguing, convincingly, that legislation and judicial decisions do not matter much. However, for me, some optimism about the power of the law keeps creeping in. The “dependent contractor” category is one example of the law’s impact that I could not resist invoking, because it involves Harry’s own impact on the development of the law. Canadian laws that implemented Harry’s proposal to add an intermediate category of “dependent contractors” undoubtedly made some difference. I have argued, however, that they were limited by

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the legislatures in several respects, which significantly muted their potential. I then moved to consider Harry’s more recent proposal for an intermediate category, and suggested several ways in which it could, in my view, be improved. Notwithstanding these concrete comments, Harry’s contribution to this topic – with his 1965 article and then the 2006 Report – has been fantastic, as in so many other labour law areas. In a recent article, Harry suggested as a “thought experiment” to reconceptualize labour law as a broader legal field, integrated with other areas of law that share a single basic idea – addressing the problem of economic subordination.32 In this vision, tenants, consumers, farmers, and small investors all share similar difficulties and vulnerabilities in a capitalistic society, which the law can redress in one integrated form, encouraging new alliances. Translated into legal language, this would lead to the breaking of legal distinctions. The category of “dependent contractors” that Harry championed half a century earlier can thus be seen as a first step in a much bigger project. In recent years, others have suggested more specifically to extend labour laws to independent contractors, as well as to other people who work for others – such as small vendors. Elsewhere, I have argued that such proposals will end up diluting the protections currently enjoyed by employees – because the differences from other groups will necessitate lowering the legal obligations to the lowest common denominator.33 But while I do not support the wholesale dissolving of legal distinctions in this area, I wholeheartedly agree that some labour and employment laws should be extended to nonemployees. This first step, which Harry has so capably advanced in Canada, has been gaining increased acceptance in various countries. The adoption of intermediate categories – designed specifically to extend labour and employment protections to broader groups – is becoming more crucial because of the proliferation of non-standard employment relations.34 Several decades ago, most workers had a “standard” relationship with an employer, characterized by both subordination and dependency. Now, there are many varieties, so it becomes more pertinent to identify which characteristics justify different regulations, and restructure the legal categories accordingly. The “dependent contractor” category is a step in the right direction. There is still a long way to go, however, both in Canada and elsewhere, to make it sufficiently effective.

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N ot es   1 See, for example, Harry W. Arthurs, “Labour Law without the State,” University of Toronto Law Journal 46 (1996): 1, 2–3, 40–1; Arthurs, “National Traditions in Labor Law Scholarship: The Canadian Case,” Comparative Labor Law and Policy Journal 23 (2002): 645, at 676; Arthurs, “Extraterritoriality by Other Means: How Labor Law Sneaks across Borders, Conquers Minds, and Controls Workplaces Abroad,” Stanford Law & Policy Review 21 (2010): 101, at 102–3; Arthurs, “Charting the Boundaries of Labour Law: Innis Christie and the Search for an Integrated Law of Labour Market Regulation,” Dalhousie Law Journal 34 (2011): 1.   2 For judicial and legislative developments in my home country which I believe have made a difference, see, for example, Guy Davidov, “Unbound: Some Comments on Israel’s Judicially-Developed Labor Law,” Compa­ rative Labor Law and Policy Journal 30 (2009): 283; Davidov, “Judicial Development of Collective Labour Rights – Contextually,” Canadian Labour & Employment Law Journal 15 (2010): 235; Davidov, “The Principle of Proportionality in Labor Law and Its Impact on Precarious Workers,” Comparative Labor Law and Policy Journal 34 (2010): 63; Davidov, “Special Protection for Cleaners: A Case of Justified Selectivity?” Comparative Labor Law and Policy Journal 36 (2015): 219. For a fuller account of Israeli labour law, see Guy Mundlak, Fading Corporatism: Israel’s Labor Law and Industrial Relations in Transition (Ithaca, ny: Cornell University Press, 2007).   3 Harry W. Arthurs, “The Dependent Contractor: A Study of the Legal Problems of Countervailing Power,” University of Toronto Law Journal 16 (1965): 89.   4 Harry did, of course, make concrete reform proposals as a commissioner appointed by the government; see, most notably, Harry W. Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (Ottawa: h rs dc , 2006), http://www.labour.gc.ca / eng / standards_equity / st / pubs_ st / fls / pdf / final_report.pdf, last accessed 24 July 2016.   5 Michael Bendel, “The Dependent Contractor: An Unnecessary and Flawed Development in Canadian Labour Law,” University of Toronto Law Journal 32 (1982): 374, at 376–8.  6 Ibid.   7 See, generally, Brian A. Langille and Guy Davidov, “Beyond Employees and Independent Contractors: A View From Canada,” Comparative Labor Law and Policy Journal 21 (1999): 7; Judy Fudge, Eric Tucker, and Leah Vosko, The Legal Concept of Employment: Marginalizing Workers

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(Report for the Law Commission of Canada, 2002), http://publications. gc.ca/collections/collection_2007/lcc-cdc/JL2-35-2002E.pdf, last accessed 24 July 2016.   8 See, for example, Fownes Construction Co. Ltd. v Teamsters, [1974] 1 C.L.R.B.R. 510 (B.C. Labour Relations Board); Chauffeurs, Teamsters and Helpers, Local Union 395 v Northern Resource Trucking Ltd. (judgment of 23 October 2002, Canada Industrial Relations Board); Canadian Union of Postal Workers v Colispro Inc. (judgment of 8 April 2013, Canada Industrial Relations Board).   9 Mark Thompson, Rights and Responsibilities in a Changing Workplace, A Review of Employment Standards in British Columbia (1994), http:// www.qp.gov.bc.ca/govtinfo/thompson.pdf, last accessed 24 July 2016; Arthurs, Fairness at Work, ch. 4. This was also one of the recommendations of Fudge, Tucker, and Vosko in their report to the Law Commission of Canada, The Legal Concept of Employment. 10 See Guy Davidov, Mark Freedland, and Nicola Kountouris, “The Subjects of Labor Law: ‘Employees’ and Other Workers,” in Comparative Labor Law, ed. Matthew W. Finkin and Guy Mundlak (Cheltenham, uk : Edward Elgar Publishing, 2015), 115–31. 11 Guy Davidov, “Freelancers: An Intermediate Group in Labour Law?” in Challenging the Legal Boundaries of Work Regulation, ed. Judy Fudge, Shae McCrystal, and Kamala Sankaran (Oxford, uk , and Portland, or : Hart Publishing, 2012), 171. 12 The same logic can be used in the context of a specific piece of legislation, to distinguish between people who are fully covered by the legislation, and those covered only partially. This was actually the way it was used by Harry (“The Dependent Contractor”): in the context of labour relations acts, “employees” are granted full rights to bargain collectively, while “dependent contractors,” he argued, should be granted such rights only insofar as “they share a particular labour market with employees” (114). 13 Guy Davidov, “Setting Labour Law’s Coverage: Between Universalism and Selectivity,” Oxford Journal of Legal Studies 34 (2014): 543. 14 Guy Davidov, “The Goals of Regulating Work: Between Universalism and Selectivity,” University of Toronto Law Journal 64 (2014): 1. 15 Guy Davidov, “The Three Axes of Employment Relationships: A Characterization of Workers in Need of Protection,” University of Toronto Law Journal 52 (2002): 357. 16 Michael Bendel, “The Dependent Contractor,” has argued that the “organization test” makes the dependent contractor category redundant, because if people are an integral part of the organization, they are also

256 Guy Davidov

dependent on it: “integration into another person’s business, the key feature of the test, is a very useful indicator of economic dependence” (382). This is usually the case, although not always. But, more importantly, the connection does not exist the other way around. Being part of the organization may usually suggest dependency, but dependency does not mean that one is part of the organization. This is exactly where the intermediate category is needed: to extend protection to people who are dependent even though they are not part of the organization. 17 A third deficiency – limiting the category only to specific sectors (trucking and fishing) – originally existed in the federal legislation but was later corrected. 18 Ontario Labour Relations Act (1995), s. 1. 19 See references in Langille and Davidov, “Beyond Employees and Independent Contractors”; for a more recent example see Carpenters Union v Contant Construction Inc. (judgment of 23 October 2009, Ontario Labour Relations Board). 20 Bendel, “The Dependent Contractor.” 21 Arthurs, “The Dependent Contractor,” 114–15. Interestingly, in Sweden, the definition was later changed and the reference to dependency dropped – the only question now is whether the contractor performs the work “in a position essentially similar to that occupied by an employee”: Axel Adlercreutz and Birgitta Nyström, Labour Law in Sweden (Alphen a/d Rijn, Netherlands: Kluwer International, 2010), 32. However, the new ­definition, as interpreted by the courts, did not lead to any change in the composition of the categories. 22 Arthurs, Fairness at Work, 64. 23 Ibid. This is actually reminiscent of Harry’s proposal for a “dependent contractor” definition (see Arthurs, “The Dependent Contractor,” 114–15). 24 Arthurs, Fairness at Work, 63–4. 25 For further discussion, see Judy Fudge, “A Canadian Perspective on the Scope of Employment Standards, Labor Rights, and Social Protection: The Good, the Bad, and the Ugly,” Comparative Labor Law and Policy Journal 31 (2010): 253. 26 See, for example, Einat Albin, “Sectoral Disadvantage: The Case of Workers in the British Hospitality Sector” (Oxford, uk : Unpublished PhD dissertation, University of Oxford, 2010); Guy Davidov, “Special Protection for Cleaners: A Case of Justified Selectivity?” Comparative Labor Law and Policy Journal 36 (2015): 219. 27 Arthurs, Fairness at Work, 62. 28 Ibid.

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29 Ibid., 63. 30 Ibid., 63–4. 31 Ibid., 64. 32 Harry W. Arthurs, “Labor Law as the Law of Economic Subordination and Resistance: A Thought Experiment,” Comparative Labor Law and Policy Journal 34 (2013): 585. 33 Davidov, “Setting Labour Law’s Coverage.” 34 See, recently, Katherine V.W. Stone and Harry W. Arthurs, eds., Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (New York: Russell Sage Foundation, 2013).

16 Labour Markets Should Be Judged Innocent until Proven Guilty Morley Gunderson Toronto

1 introduction

Consistent with the well-known legal principle that individuals should be judged innocent until proven guilty, in this chapter, I will argue that labour markets should be regarded as innocent until proven guilty. That is, legal interventions in labour markets should be based upon well-defined market failures, and should recognize how markets will respond to legal interventions, often with unintended consequences and in ways that can undo the effects of the intervention. Furthermore, while markets are generally regarded as the source of the problems (e.g., discrimination, unemployment, precarious em­­ployment), negative market outcomes are often the symptoms of underlying causes, including those that result from regulation. Importantly, market forces can also be part of the solution. The chapter will draw on work that I have done for various commissions and projects for Harry Arthurs. These include: “Minimum Wages in Canada: Theory, Evidence and Policy”1 and “Social and Economic Impact of Labour Standards”2 for Arthurs (2006); “Incen­ tive Effects of Occupational Pension Plans”3 for Arthurs (2008); and “Changes in the Labour Market and the Nature of Employment in Western Countries”4 for Stone and Arthurs (2013). This chapter emphasizes how market forces deal with such issues as discrimination, pension regulations, payroll taxes, and non-­standard employment. It is written from the perspective of a neoclassical,

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market-oriented labour economist (moi, in the words of Miss Piggy), and hence will likely contrast with views in the legal profession, with its emphasis on legislation and regulation to deal with social problems.5 Areas of congruence and of contrast with Harry’s work are highlighted in the concluding section. 2 d i s c r i m i n at i o n

Discrimination in labour markets clearly exists in such forms as paying lower wages to some workers than to others of the same productivity, or not hiring or promoting particular groups simply because of such factors as their gender or colour or sexual orientation. In this respect, markets clearly appear to be guilty and part of the problem. But market forces can also be part of the solution. Economics emphasizes that firms that engage in such discrimination are forgoing profits by not hiring more of the lower-wage workers who are as productive as the higher-wage workers, or by not hiring or promoting the most capable workers. The increase in the demand for  such equally productive but lower-paid workers should serve to  increase their wages, with the process continuing until their wages reflect their productivity. As aptly stated in the early 1920s by Francis Edgeworth: The best results will presumably be obtained by leaving employers free to compete for male or female labour. Thus equal pay for equal work would be secured in our sense of the term.6 Firms that discriminate should not survive long in competitive markets, any more than would firms that were willing to pay 20 per cent more for blue machines as opposed to equally productive red machines. In the long run, competitive market forces should dissipate such discrimination, and empirical evidence documents this to be the case.7 In this vein, ironically, markets may be a minority group’s best friend. Of course, there may be pressures that can run counter to this dissipation of discrimination. Markets may not be competitive, and employers may have monopoly profits that they can use for other purposes, including engaging in nepotism and costly discrimination. Families may stream daughters into nursing programmes and sons

260 Morley Gunderson

into becoming doctors. Husbands and partners may be reluctant to have their spouse accept a promotion if it conflicts with household activities or their own self-esteem. But these, then, are the guilty parties, not markets. 3 p e n s i o n r e g u l at i o n a n d c o s t - s h i f t i n g

Considerable policy concern has been expressed over the decline of employer-sponsored occupational pension plans and the shift from defined benefit (DB ) to defined contribution (D C) plans, with those changes prompted by cost-saving concerns from employers in response to competitive market pressures. Such changes, however, generally entail more risk for employees. Basic principles of economics, however, emphasize that much of the decline of pensions and the shift to defined contribution plans may have been caused by the extensive regulation of defined benefit plans through features such as vesting rules, cost-sharing, and requi­ rements to share fund surpluses with beneficiaries. As stated by James Pesando and John Turner: A major factor discouraging establishment of new plans in Canada is the complexity of pension laws … Laws designed to reduce risks to workers have become so expensive for employers to comply with that they may be counterproductive. Some employers have switched their defined-benefit pension plans to money purchase (defined-contribution) plans or have terminated them in favour of group r rs p s.8 The evidence also generally suggests that increased regulation has had these effects.9 This does not imply that the regulations are guilty of having overall negative effects on pensions, since the regulations obviously serve a purpose. But it does imply that the decline of pensions and the shift to DC plans may simply be the symptoms of more fundamental causes, including excessive regulations. Whether the regulations are indeed excessive depends upon the trade-off between their providing a degree of protection to pension holders at the expense of fewer pensions, and a shift to ones that are more risky for pension holders. Basic principles of economics also emphasize that employers are able to shift much of the cost of their occupational pension plans to

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employees in the form of being able to pay lower wages in return for the more generous pension plans that they provide, and the evidence suggests that this is what they do.10 Again, this does not mean that pensions should not be regulated, since the cost of any improvement will be borne by workers. It does, however, highlight the economic principle that there is no such thing as a free lunch, including free pension benefits for employees. 4 pay r o l l ta x e s a n d c o s t - s h i f t i n g

The same cost-shifting applies to payroll taxes required to finance programmes such as workers’ compensation and unemployment insurance, which are used to compensate for workplace risks of accidents and injuries and for the risk of being unemployed. Arguments are often made that employers should be required to pay such taxes in full, rather than there being any cost-sharing. The argument takes on particular appeal when the ability to pay of a large corporation is contrasted to that of an individual worker. Basic principles of economics, however, highlight that the ultimate incidence of a tax (i.e., who ultimately pays the tax) can be different from where it is first levied. In the case of payroll taxes, employers will shift some of the tax forward to customers and some backward to workers, who benefit from the services financed by the tax. Shifting the tax forward to customers is difficult in a world of global compe­tition, since customers can “shop elsewhere.” Under such circumstances, the tax tends to be shifted backwards to the immobile factor of production – labour that cannot escape the tax shifting. The empirical evidence for Canada indicates that around 80 per cent of the cost of such payroll taxes is ultimately borne by workers in the form of compensating wage reductions for the benefits associated with such programmes.11 Again, this obviously does not make such programmes undesirable, since they serve an important purpose. It does highlight, however, that workers ultimately pay for the benefits that they receive even though some or all of the tax is initially imposed on employers. This also highlights the fact that some of the stagnation of real wages that has occurred in recent years may reflect the co-occurring rise in payroll taxes. If the cost of these payroll taxes were shifted back to workers in the form of lower compensating wages, then this could contribute to wage stagnation.

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5 n o n - s ta n da r d e m p loy m e n t

One of the most prominent developments in labour markets in recent years is the rise of non-standard employment in various forms: permanent part-time work; seasonal work; casual, temporary work on limited-term contracts; self-employment; temporary-help agencies; on-call work; and telecommuting and home working. Workers in such jobs are often vulnerable, receiving low pay, few fringe benefits, little job security, limited training and career advancement, and little protection under a collective agreement or the application or enforcement of labour legislation that was designed more for the standard employment contract. This growth of non-standard employment has given rise to calls to extend and enforce the protection of standard labour laws to nonstandard workers.12 It has also given rise to a search for alternative regulatory regimes to regulate such employment, given the demise of the standard employment contract.13 Market forces can certainly be judged as “guilty” of contributing to the increase in non-standard employment. The interrelated pressures of global competition and demands for just-in-time delivery have given rise to demands for a just-in-time workforce. But some of  the rise of non-standard employment also reflects the market responding to the changing needs of an increasingly heterogeneous workforce: two-earner families seeking work-life balance through part-time work or telecommuting; students working while in school or making the school-to-work transition; new entrants to the workforce seeking non-standard jobs as stepping-stones to more permanent jobs; and older workers transitioning into and out of retirement. Importantly, some of the rise of non-standard employment can also reflect the market responding to regulations imposed on the standard employment contract. Whether the market or regulations is the guilty party in such circumstances depends on whether the regulatory process protects workers and the public, or is “captured” by interest groups to protect their own interests. Regulations on occupational licensing, for example, can protect consumers from unscrupulous providers, but they can also protect incumbent professionals and tradespeople from competition that could otherwise lead to lower prices and more choice in services for consumers. The same can apply to bodies that deal with the recognition of the foreign credentials of immigrants.

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Legislation that extends union wages to non-union workers by juridical decree can provide benefits to those non-union workers, but it can also provide protection to unionized workers from lower-wage non-union competition. Economics emphasizes that the “protection” of vulnerable workers and consumers can be thinly disguised ways of protecting already-advantaged interest groups of “insiders.” Markets can be unduly influenced by powerful employers, but they can also be influenced by powerful interest groups through the political process. If extending employment protection to non-standard workers is fraught with difficulties, market mechanisms can be part of the solution. The expected penalty for violating labour standards is the product of the probability of the violation being investigated, multiplied by the probability of getting caught if investigated, multiplied by the probability of being found guilty, multiplied by the penalty if found guilty. If the first three factors are difficult to enforce for non-­standard employees, then this can be offset by increasing the penalty for those found not to be in compliance. The penalty could be a high monetary fine or bad publicity for high-profile employers in areas where a negative image is costly. 6 c o n c l u d i n g o b s e r vat i o n s

The material in this chapter is somewhat in agreement with Arthurs’s ideas about the limits of regulation and labour law, but there are elements of contrast. I purposely use the term “contrast” rather than “disagreement,” since, as an economist, I know never to disagree with a lawyer, especially one as skilled as Harry. One area of agreement relates to the notion that market forces are in the ascendant under global competition and freer trade arrangements, and that collective bargaining and legislative initiatives are on the defensive (on the ropes, but not down-and-out) since employers can make a more credible threat of relocating their plants and investment to countries with lower wages and fewer regulations.14 Also, there is agreement that the labour laws and regulations that were designed for the old world of work with its standard employment contract are of limited relevance to the new world of work with its mobile transnational corporations and non-standard employment.15 Another area of agreement is on the severity of the growing inequality of income that is associated with the increased importance of market forces and their invisible hand – indeed the “grabbing hand.”16

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Arthurs appropriately comments: “A rising tide, it seems, may lift a few boats, but it is likely to swamp many more”17 – he could have added, “especially those anchored to the bottom.” Arthurs highlights the limits of the law and regulation in this area by arguing that legal and constitutional strategies will not produce equality.18 This is so for various reasons: legal recourse tempts them [equality-seeking groups] to abandon struggle or the threat of struggle … law legitimizes the existing economic order and the social outcomes produced by that order … many judges and academics are heavily invested in the status quo.19 In this area of growing inequality, there is also agreement with the possible solution that “perhaps the best equality seekers can hope for  is that capitalism will somehow reform itself, will somehow abandon its unlimited tolerance for inequality and the consequences of inequality … [and that] capitalism will develop an appetite for change because of a well-established fear that the system itself is at risk of collapse.”20 While there are these areas of agreements between the material in this chapter and Arthurs’s ideas about the limits of regulation and labour law, there are areas of contrast, often related to potential solutions. A perspective advanced in this chapter is that there are limits to regulation and labour law not only for the reasons advanced by Arthurs, but also because markets can often undo the intended effects of legislative and regulatory initiatives, often with negative unintended consequences. The costs of pensions and of schemes of workers’ compensation and employment insurance, while initially placed on employers, are largely shifted back to workers in the form of lower wages in return for the benefits of those schemes. Also, regulatory and legal initiatives that are allegedly designed to protect consumers and workers may be “captured” by those who are regulated, and subverted to their own ends in order to protect the privileged positions of already advantaged groups. Also, regulations and laws are often designed to protect “insiders,” and ones that are excessively costly can lead employers to shift to “outsiders” in non-standard employment and the underground economy where protection is nonexistent. Furthermore, while markets may be part of the problem, or at least may manifest the symptoms of the underlying causes, markets can

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also be part of the solution. Competitive market pressures help dissipate discrimination, and penalties for noncompliance can be designed to offset the difficulties of enforcing laws and regulations. When faced with a labour market problem (e.g., low wages, unemployment, or job instability), policy-makers should not immediately respond with “How can we pass more laws and regulations?” to deal with the problem. Rather, the response should be: “What is the underlying cause of the problem, and are there well-defined market failures that gave rise to the problem?” In documenting market failures, however, market-oriented economists (moi included) must be open to the failure of markets in many areas, including that of providing an equitable distribution of income – a key issue today. Equity issues are as important as efficiency issues in judging markets. If there are barriers that inhibit markets from dealing with the problem, can these barriers be removed in order to facilitate markets functioning properly? Markets can be imperfect, but imperfect market solutions must be compared to what are likely to be imperfect political and legal solutions. Like Churchill’s democracy, markets may be the worst of all mechanisms – except for all others. N ot es   1 Morley Gunderson, Minimum Wages in Canada: Theory, Evidence and Policy (Ottawa: Fair Labour Standards Commission, 2006).   2 Morley Gunderson, Social and Economic Impact of Labour Standards (Ottawa: Fair Labour Standards Commission, 2006).   3 Morley Gunderson, Incentive Effects of Occupational Pension Plans (Ottawa: Fair Labour Standards Commission, 2008).   4 Morley Gunderson, “Changes in the Labor Market and the Nature of Employment in Western Countries,” in Rethinking Workplace Regulation: Beyond the Standard Contract of Employment, ed. Katherine V.W. Stone and Harry W. Arthurs (New York: Russell Sage Foundation, 2013), 23–41.   5 This contrast always made me wonder why Harry asked me to do these background reports for him when he was advising on important social policy issues of the day. He knew my perspective as a neoclassical labour economist, and (my perception is that) this contrasted with his healthy scepticism of markets for dealing with social problems and his concern with the “state going to market” and therefore having to cry “wee wee wee all the way home” (Arthurs, “The Administrative State Goes to Market – And Cries Wee, Wee, Wee All the Way Home,” University of Toronto Law

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Journal 55 [2005]: 797–831). I ultimately concluded that Harry is an extremely open-minded person with a strong social conscience, and wants to understand all perspectives before he makes recommendations.   6 Francis Y. Edgeworth, “Equal Pay to Men and Women for Equal Work,” Economic Journal 32 (1922): 431–57, at 438.   7 Studies documenting that competitive market forces help dissipate discrimination include: Orley Ashenfelter and Timothy Hannan, “Sex Dis­ crimination and Product Market Competition: The Case of the Banking Industry,” Quarterly Journal of Economics 101 (1986): 149–73; Sandra Black and Elizabeth Brainerd, “Importing Equality? The Impact of Globalization on Gender Discrimination,” Industrial and Labor Relations Review 57 (2004): 540–59; Sandra Black and Philip Strahan, “The Division of Spoils: Rent-Sharing and Discrimination in a Regulated Industry,” American Economic Review 91 (2001): 814–931; Judith Hellerstein, David Neumark, and Kenneth Troske, “Payroll Taxes and the Financing of Social Security,” Journal of Human Resources 37 (2002): 353–80; and Xin Meng, “Gender Earnings Gap: The Role of Firm Specific Effects,” Labour Economics 11 (2004): 555–73.   8 James Pesando and John A. Turner, “Risk Bearing in Individual and Occupational Pension Plans,” in Pay at Risk: Compensation and Employment Risk in the United States and Canada, ed. John A. Turner (Kalamazoo, m i : W.E. Upjohn Institute, 2001), 131–60, at 135.  9 Gunderson, Incentive Effects of Occupational Pension Plans, 11. 10 Ibid., 13. 11 Jonathan R. Kesselman, “Payroll Taxes in the Finance of Social Security,” and references therein, in Labor Market Policies in Canada and Latin America: Challenges of the New Millennium, ed. Albert Berry (Norwell, m a : Kluwer Academic Publishers, 2001), 135. 12 Alain Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (Oxford, u k: Oxford University Press, 2001). 13 Stone and Arthurs, Rethinking Workplace Regulation. 14 Harry W. Arthurs, “Labour Law without the State,” University of Toronto Law Journal 46 (1996): 1–46; Arthurs, “The Administrative State Goes to Market – And Cries Wee, Wee, Wee All the Way Home,” University of Toronto Law Journal 55 (2005): 797–831. 15 Stone and Arthurs, Rethinking Workplace Regulation. 16 Harry W. Arthurs, “The ‘Majestic Equality’ of the Law: Why Constitu­ tional Strategies Do Not Produce Equality,” paper presented at a workshop on Equality (Nantes, France: Institute for Advanced Studies, June 2014), 2, http://ssrn.com/abstract=2507900, last accessed 24 July 2016.

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17 Ibid., 5. 18 Ibid. 19 Ibid., 7, 8. 20 Ibid., 13.

pa r t v i

The Frontier of Labour Law’s Uncertain Future

17 Labour Law and the Political Economy of Inequality Michael Lynk University of Western Ontario

The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association ... tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries. “Preamble,” National Labor Relations Act, 1935 Your blood asks, how were the wealthy and the law interwoven? With what sulfurous iron fabric? How did the poor keep falling into the tribunals? Pablo Neruda, “The Judges”

1 introduction

On the eastern edge of London, Ontario, the city where I live and teach, sits an enormous factory that for sixty years manufactured railway locomotives for the world market. It was not unusual, when passing the factory on the way to the regional airport, to see newly

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assembled locomotives with Hindi or Spanish script chugging through the rail yards on their test runs. Even during the twilight of the halcyon days of manufacturing at the end of the 1990s, the in­dustrial heartland of southwestern Ontario was dotted with large automotive and agri-food factories – Kellogg’s, Ford, Smucker’s, McCormick-Beta Brands, Navistar, Heinz, Caterpillar – that supported a buoyant regional economy and many thousands of wellpaid and mostly unionized jobs. In 1980, one million Ontarians worked in the manufacturing sector, amounting to 24 per cent of the provincial labour force. By 2015, after the ravages of free trade agreements, a yo-yo Canadian dollar, several intermediate and one great recessions, intense automation, the rise of the high-tech economy, and the transformative shift to global industrial supply chains, manufacturing jobs had fallen to 11 per cent of Ontario’s labour force, and numerous large-scale employers – including every company named above – had closed their plants in the region around London.1 In early 2012, Caterpillar shuttered its London locomotive plant after the unionized workforce refused the company’s demand for a 40–50 per cent cut in wages and benefits during collective bargaining, leaving 460 workers out of a job. A few days after the factory closure, Caterpillar announced that it was moving its locomotive manufacturing operations to Muncie, Indiana, where the governor had just signed a right-to-work law that eviscerated the already enfeebled bargaining power of unions in his state.2 And accompanying London’s shrinking manufacturing base has been a pattern of rising residential segregation across the city’s neighbourhoods, as the number of neighbourhoods with relatively little income poverty have increased simultaneously with the number of neighbourhoods with high levels of low income since 2000. A leading source of this rising neighbourhood inequality, a 2015 study on poverty in London concluded, has been the deterioration of the labour market, with the region’s manufacturing jobs having been largely replaced by parttime and time-limited work.3 Harry Arthurs has spent his prolific intellectual career posing difficult and discomforting questions about the meaning of this historic shift in our economy, and how it is re-transforming our politics, our world of work, and our regulatory capacity to preserve the public good. At the heart of his inquiries, throughout his career, has been the relationship between a relatively static body of labour laws and the larger political economy that is being dynamically reshaped by a

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globalizing capitalism, a relationship that eludes most lawyers. Labour law, Arthurs has insisted, cannot be explained by labour law alone. In a classic early study informed by circumspect optimism, he traced the arc of workplace rights in Canada from semi-feudal status to market contract to regulatory status, culminating in an autonomous system of labour law that emerged in the post-war years both to consolidate these gains and to impose democratic boundaries on the traditional rights of property. This brave new world, Arthurs maintained at the time, was creating a code of industrial citizenship – “a state within a state” – that could germinate a richer and more engaged citizenship for working people within the broader society.4 But this world was subsequently to unravel, and with it went the possibilities of the former age.5 In more recent years, his writings – as trenchant and rigorous as ever, but now more gloomy – have argued that the unleashing of market forces has become a more powerful determinant of workplace standards than regulatory labour legislation, and that the larger tools of the modern state – trade agreements, tax laws, monetary policy, immigration programmes, and the like – have come to play as decisive a role in shaping labour rights as any collective agreement or protective workplace statute.6 In the face of claims for constitutionalizing labour rights, Arthurs has told us that the faith of labour litigators has been misplaced because the deep structures of our political economy (the “real constitution”), unwittingly abated by unreliable courts, have usually trumped the juridical constitution.7 Governments, who played an active role in reforming labour laws and administrating social programmes to enhance economic security up until the 1980s, now act towards labour standards and employees’ social benefits with benign neglect at the best of times and, at the worst of times, with an active hostility reminiscent of the 1920s.8 Arthurs’s intellectual warning to the labour law community is stark: we have ignored the political economy at our peril, and only by intertwining our legal strategies with the wider political and social struggles against this illiberal remaking of the world will labour law be able to replenish its promise.9 2 i n e q ua l i t y

For labour lawyers and industrial relations specialists, the political economy question of the day – and the one that is within our grasp to engage – has to be the mounting inequality in wealth and income

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throughout both Canada and much of the world, and its hydraulic relationship to the ebbing power of trade unions, collective bargaining, and labour law. “Of all the competing and only partially reconcilable ends that we might seek,” the historian Tony Judt wrote, “the reduction of inequality must come first.”10 Indeed, this is not a new question. Long ago, Hugo Sinzheimer – an architect of the Wei­ mer Constitution – conceived of labour law as a “guardian of human beings in an age of unconstrained materialism”; as Bob  Hepple has put it, Sinzheimer’s vision of labour law was as a force to counter­ act inequality.11 The National Labor Relations Act, enacted by the United States Congress in 1935, explicitly linked bargaining inequality in the workplace and the lack of a statutorily protected collective voice for  labour to the widening patterns of economic inequality that had flattened the American economy through depressed wage rates and under-consumption.12 Today, institutions and individuals as diverse as the International Monetary Fund,13 the Organisation for Economic Co-operation and Development,14 the International Labour Orga­nization,15 the Conference Board of Canada,16 the Uni­ ted Way,17 the Toronto-Dominion Bank,18 Oxfam,19 The Economist magazine,20 the Davos World Economic Forum,21 and several leading Nobel economic laureates22 have all raised alarms over the yawning gaps in wealth and income in societies as diverse as Canada, the  United States, the United Kingdom, China, Brazil, and South Africa. In a remarkable interview conducted in late 2014, the former clerk of the Privy Council – Canada’s top civil servant – stated that the issue which keeps him awake at night is economic and social inequality, and its disfiguring consequences. Alex Himelfarb specifically fingered the lopsided economic leverage of corporations in this rapacious age: Capital always talks louder than labour – that’s why it’s called “capitalism” and not “labourism” – but now the bargaining power of capital is through the roof. So money talks louder than ever.23 Economic inequality, measured by both income and wealth levels, has been on the march for the past thirty years in both Canada and much of the rest of the world.24 This was not always so. In the four decades after the end of the Second World War, income and wealth inequality had markedly decreased throughout the industrial world.

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Governments in the post-war era, influenced by Keynesian economics and buoyed by strong public support, introduced wide-reaching redistributive tax and transfer policies, made significant public investments in education and skill levels, took a leading role in national economic planning, and supported collective bargaining as a positive social policy goal. The results led to greater democratic engagement and more egalitarianism, more social mobility, and more stable and prosperous societies, in sharp comparison to the unregulated societies, laissez-faire economies, and rigid class structures of the inter-war years. But a successful conservative democratic counter-revolution beginning in the 1980s – personified by the elections of Ronald Reagan, Margaret Thatcher, and Brian Mulroney, and the reluctance of the more liberal governments that followed them to undo their essential handiwork – turned the tables. In Canada, between 1980 and 2007, the Gini coefficient – a widely used measurement of income inequality25 – rose from 0.44 to 0.51, a rise of 16 per cent. Measured by income quintiles, the top 20 per cent of income earners received 44  per cent of total income earnings in 1980; by 2007, this had risen to 51 per cent. Among the very top earners, the increases have been even more dramatic: while the top 1 per cent of income earners in Canada received incomes approximately 8 times higher than the average income of all Canadians in the late 1970s, this had increased to 14 times by the mid-2000s.26 As for the median real earnings of the Canadian labour force, this needle has barely moved in the years since 1981: while Canadian real gd p per person rose by approximately 50 per cent between 1981 and 2011, the real median hourly wage grew by only 10 per cent.27 Among the 35 o e cd member countries, Canada ranked 24th in terms of after-tax income inequality in the late 2000s, marking a steady decline in Canada’s performance over 25 years, and placing it below the o e cd average.28 More than a moral question is involved here. Contemporary research demonstrates that more equal societies are more likely to provide greater and more sustained growth and better social outcomes, while expanding inequality has a distinct tendency to produce greater indebtedness, more fiscal fragility and unbalanced growth, more periodic macro-economic crises, a larger social burden borne by the most disadvantaged and the lower-skilled, the fracturing of social cohesion, and the stunting of economic growth.29 Moreover, more unequal societies allow the very well-off to increase their influence over political choices in society, which invariably distorts government

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priorities in favour of austerity policies and appeasing financial markets; greater restraints on public services, smaller social expenditure(s), and smaller “social wage” payments; significantly reduced corporate and high-end personal taxation rates; and an insistence on “wage moderation” and more frequent restrictions on collective bargaining and workplace rights.30 While technical and economic explanations for growing inequality – such as the decline in redistribution policies,31 the disappearance of medium-skilled jobs,32 technological change and education,33 and foreign trade and globalization34 – all tell us something about these phenomena, the source explanation for the mounting inequality points to the realm of politics and human agency. As Joseph Stiglitz, Nobel economics laureate, has argued, the problem of inequality is ultimately a question of political economy: “Economic inequality translates into political inequality, and political inequality yields increasing economic inequality.”35 3 i n e q ua l i t y a n d u n i o n d e n s i t y

The relationship between the rise in economic inequality and the declining density and bargaining strength of unions has been apparent for some time among industrial-relations specialists and labour economists.36 Evidence from a large number of industrialized countries tells us that high national unionization rates correlate with moderate or low levels of economic inequality, and vice versa.37 A major study by the International Labour Organization in 2008 found a clear negative correlation between unionization and inequality: the countries in which income inequality is on average lower in the period 1989–2005 tend to be those in which a greater ­proportion of workers are affiliated to trade unions.38 Recently, more orthodox institutions have accepted the link between the two. A 2015 economic study of a number of advanced economies by the International Monetary Fund has concluded that “the decline of unionization is strongly associated with the rise of income shares at the top.”39 On average, the study said, the decline in unionization explained about half of the five-percentage-point rise in the top 10 per cent income share in the advanced economies that it studied. The imf also noted that strong unions lean towards economic equality by minimizing wage level differences at the bargaining table and by inducing

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policy-makers to engage in more redistributive measures through the mobilization of members to vote for parties sympathetic to their broader social goals.40 This builds upon earlier studies on the redistributive impact of unions, which found that they raise the compensation offered by non-union employers to their workforce to forestall the appeal of unionization,41 they dampen the differential levels between executive pay and the compensation paid to the workforce,42 and they mobilize the critical mass and political influence of other egalitarianism-seeking social groups – such as non-­governmental organizations, academics, policy think-tanks, and liberal denominational institutions – to press for more egalitarian social legislation and redistributive tax and transfer policies.43 The evidence from Canada supports the analysis by the imf and the ilo. In Canada, trade union density peaked in the mid-1980s at 38 per cent of the workforce, and then slowly but steadily declined to 30 per cent by the early 2000s before levelling out.44 This decline has inversely aligned rather closely with both the income increases for the top 20 per cent income quintile (which rose by 16 per cent from 1980 to 2007) and the top 1 per cent income group (which increased by 80 per cent over the same period). Throughout the same period, the level of union density also closely tracked the national wage bill (the portion of income in Canada going to wages and salaries): increased union density corresponded with a rising wage bill from the 1950s to the 1980s, and then the decline in union density beginning in the early 1990s was closely matched by the falling national wage bill (which fell by six percentage points between 1990 and 2005), a correlation that continues through to today.45 A 2004 study in Canada estimated that about 15 per cent of the growth in economic inequality in Canada during the 1980s and 1990s can be attributed to the decline in unionization, with a higher attribution rate of over 20 per cent in the United States and the United Kingdom (where the decline in unionization has been more dramatic than in Canada).46 A more recent study from the United States has estimated that a third of the increase in wage inequality among American men since 1973, and a fifth of the increased inequality among American women, can be attributed to the decline in American union density and power.47 4 i n e q ua l i t y , u n i o n d e n s i t y , a n d l a b o u r l aw

If there is a hydraulic relationship between the rise of economic inequality, in Canada and elsewhere, and the corresponding decline

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in the coverage rates and political influence of unions, then one solid explanatory reason for the waning levels of union representation and political influence would be the stagnation and reversal of labour law reform over the past several decades. In North America, academic scholarship has pointed to the growing difference between an ossified and inert American National Labor Relations Act and the relative vitality of Canadian labour legislation as the primary reason for the wide gap between the unionization levels in the United States (11 per cent in 2014) and Canada (30 per cent in 2014).48 And the diminishing vitality of Canadian labour law has now become an explanation for the contraction of Canadian unions since their high-water mark in the mid-1980s.49 As the industrial relations specialist Timothy Bartkiw has written, “Labour laws continue to matter, despite shifts in economic internationalization and industrial structure.”50 Bearing in mind that the regular refreshing of labour legislation in Canada, particularly between the 1960s and the 1980s, had enabled unions to address legal gaps in their ability to engage hard-to-­organize occupational sectors in the economy and to bargain meaningfully with recalcitrant employers, all with the effect of increasing both the unions’ density and their political voice.51 That tide has long since receded, and labour law reform in Canada – in the sense of enhancing collective bargaining as a public policy legislative objective – has been almost entirely somnolent since the mid-1990s. This somnolence has not been an accident: most Canadian governments since 1995, both federal and provincial, have accepted and entrenched the revanchist political consensus that shrinking the legal rights and political influence of the labour movement, whether assertively or passively, would enhance the capacity of governments to enact austerity measures in economically difficult times, and improve the investment-friendly image of the government in prosperous times. Since the mid-1990s, the steady stream of legislative changes to labour law has consistently sought to shrink the reach of the Wagner Act, and almost never to broaden its coverage.52 The new, more conservative legislative stance over the past twenty years has taken four forms. The first trend has been the explicit rolling back of longstanding provisions that had encouraged union certification and bargaining power. Exhibit A has been the ongoing repeal of card-check certification provisions and their replacement with mandatory certification elections: where only Nova Scotia had migrated from card-check to mandatory elections before 1980, now seven jurisdictions, representing 70 per

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cent of the national labour force – including four of the largest five jurisdictions (Ontario, British Columbia, Alberta, and the federal jurisdiction) – have enacted the practice. Comprehensive studies on the changes in Ontario in the 1990s and British Columbia between the mid-1980s and the early 2000s demonstrated a high level of union certification success under the card-check process and a significant decrease in union success rates under the mandatory certification process.53 Second, the three instances since 1990 where substantial labour law reform that sought to keep the Wagner Act model current with the changes in the labour market and the broader economy had taken place – Ontario in 1992 and 1994, British Columbia in 1992, and Saskatchewan in 1993 – were all significantly undone by the more conservative governments that subsequently took power.54 Third, there has been a measurable increase in government use of interventionist legislation in the collective-bargaining process, either by the enactment of back-to-work statutes that removed or forestalled the legal right of strikes (at a time when strike action by unions nationally is at a forty-year low), or by the curbing of collective bargaining in the public sector through the imposition of unilateral wage settlements or the removal of negotiation items that could be bargained.55 The effect of all this has been to erode the efficacy of publicsector unions, a perhaps unsurprising result if one remembers that 71 per cent of the public sector is unionized, compared to only 17 per cent of the Canadian private sector. And fourth, the most common stance by governments in Canada has been benign neglect, a studied disinterest in the legislative reform of labour law. This deliberate abstention by legislatures from an active role in the shaping of industrial relations institutions has increasingly abandoned the fate of employment rights at work to the steadily unregulated market. It is this invisible hand, this mirage of stability and neutrality in the labour market and the wider society, that Harry Arthurs has been warning us all about. 5 conclusion

To complete the intellectual circle that we have been tracing, Arthurs has been teaching us throughout his contemporary writings that a fundamental characteristic of the role of law – and the role of labour law in particular – is that it can mitigate inequality, when used purposively and assertively. After all, the rule of law is one of the greatest

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of the common goods that we share, and its primary purpose has to be the betterment of us all. Among labour lawyers, our task in these times has to be that of raising our eyes beyond the mechanics of labour market regulation and directing our attention away from the tidy reconciliation of jurisprudence. As Arthurs has written so eloquently, labour lawyers should devote more time and energy to finding ways to locate labour issues within a larger critique of the particular predatory form of capitalism that seems to have gained ascendancy in some advanced economies. Everyone – not just “labour” – has a stake in labour law’s intellectual realignment.56 If we fail, we know from history where this can all lead. No te s   1 See, generally, Mike Moffatt, “Reforging Ontario,” Literary Review of Canada 22 (2014): 3.   2 Greg Keenan, “Caterpillar Pulls Plug on London Plant,” The Globe and Mail (3 February 2012); Editorial, “Caterpillar Gives Ontario Harsh Lesson in Union-Busting by Shutting Locomotive Plant,” Toronto Star (2 February 2012).   3 Don Kerr and Barbara Decker Pierce, “Income Inequality Increasing Across London’s Neighbourhoods” (London: King’s University College, London Poverty Centre, 2015), http://dkerr.kingsfaculty.ca/dkerr/assets/ slide12.pdf and http://dkerr.kingsfaculty.ca/dkerr/assets/slide5.pdf, last accessed 24 July 2016.   4 Harry W. Arthurs, “Developing Industrial Citizenship: A Challenge for Canada’s Second Century,” Canadian Bar Review 45 (1967): 786.   5 Harry W. Arthurs, The New Economy and the Demise of Industrial Citizenship (Kingston, on : i rc Press, 1996).   6 Harry W. Arthurs, “Labour Law after Labour,” in The Idea of Labour Law, ed. Guy Davidov and Brian Langille (Oxford, uk : Oxford University Press, 2011).   7 Harry W. Arthurs, “Social Rights, Labour Rights and the Constitution: A Cautionary Tale from Canada,” paper presented at the Canadian Studies Program, u c la School of Law, 5 November 2014; Arthurs, “The ‘Majestic Equality’ of the Law: Why Constitutional Strategies Do Not Produce Equality,” Osgoode Legal Studies Research Paper No. 70 (2014);

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Arthurs, “Constitutionalizing the Right of Workers to Organize, Bargain and Strike: The Sight of One Shoulder Shrugging,” Osgoode c lpe Research Paper No. 26/2010 (2010).   8 Harry W. Arthurs, “Labour Law without the State?” University of Toronto Law Review 46 (1996): 1.   9 Harry W. Arthurs, “From Governance to Political Economy: Insights from a Study of Relations between Corporations and Workers,” Osgoode Hall Law Journal 45 (2009): 349. 10 Tony Judt, Ill Fares the Land (New York: Penguin Books, 2010), 184. 11 Quoted in Brian Langille, “Labour Law’s Back Pages,” in Boundaries and Frontiers of Labour Law, ed. Guy Davidov and Brian Langille (Oxford, uk, and Portland, or: Hart Publishing, 2006), 13. 12 (49 Stat. 449) 29 U.S.C. § 151–69. 13 Jonathan D. Ostry, Andrew Berg, and Charalambos Tsangarides, Redistri­ bution, Inequality and Growth (i m f Discussion Note) (Washington, dc : im f, 2014). 14 oe c d, Divided We Stand: Why Inequality Keeps Rising (Paris: oec d, 2011). 15 il o, World Employment and Social Outlook – Trends 2015 (Geneva: il o, 2015); i lo, World of Work Report 2008: Income Inequalities in the Age of Financial Globalization (Geneva: ilo, 2008). 16 The Conference Board of Canada, “Canadian Income Inequality: Is Canada Becoming More Unequal?” (Ottawa: Conference Board of Canada, 2011). 17 The United Way et al., The Opportunity Equation: Building Opportunity in the Face of Growing Income Inequality (Toronto: The United Way, 2014). 18 T D Bank, The Case for Leaning In against Inequality in Canada: Special Report – t d Economics (Toronto: Author, 24 November 2014). 19 Oxfam, Wealth: Having It All and Wanting More (Oxford, uk : Oxfam, 2015); Oxfam, Even It Up: Time to End Extreme Inequality (Oxford, uk : Oxfam, 2014). 20 “For Richer, for Poorer,” The Economist (13 October 2012). 21 World Economic Forum, The Global Risks Report, 2015 (Davos, Switzerland: w ef, 2015). 22 Joseph Stiglitz, The Price of Inequality: How Today’s Divided Society Endangers Our Future (New York: W.W. Norton & Company, 2012); Paul Krugman, The Conscience of a Liberal (New York: W.W. Norton & Company, 2009). 23 Adam Kahane, “Alex Himelfarb on Austerity, Inequality and ‘Trickledown Meanness,’” The Globe and Mail (19 December 2014).

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24 Thomas Piketty, Capital in the Twenty-First Century (Cambridge, ma : Harvard University Press, 2014); Michael R. Veall, “Top Income Shares in Canada: Recent Trends and Policy Implications,” Canadian Journal of Economics 45 (2012): 1247; Wiemer Salverda, Brian Nolan, and Timothy M. Smeeding, eds., The Oxford Handbook on Economic Inequality (Oxford, u k : Oxford University Press, 2009); Emmanuel Saez and Michael R. Veall, “The Evolution of High Incomes in Canada 1920– 2000,” in Top Incomes over the Twentieth Century: A Contrast between Continental European and English-Speaking Countries, ed. A.B. Atkinson and Thomas Piketty (Oxford, u k: Oxford University Press, 2007), ch. 6. 25 The Gini coefficient represents the difference between the actual distribution of income inequality and a watermark where everyone has exactly the same income, where 0 represents absolute equality and 1 indicates that one person has captured the total income of the society. A rise in the Gini tells us that income inequality is rising. The Gini average of the oec d countries in 2010 was 0.32. See http://www.oecd.org/social/incomedistribution-database.htm, last accessed 24 July 2016. 26 Nicole Fortin et al., “Canadian Inequality: Recent Developments and Policy Options,” Working Paper No. 100 (Ottawa: Canadian Labour Market and Skills Researcher Network, 2012). These findings may well under-represent the true capture of wealth and income in Canada by the most affluent: see Michael Wolfson, Michael R. Veall, and Neil Brooks, Piercing the Veil: Private Corporations and the Income of the Affluent (Ottawa: University of Ottawa Department of Economics, 2014). 27 René Morissette, Garnett Picot, and Yuqian Lu, “Wage Growth over the Past 30 Years” (Ottawa: Statistics Canada Cat. 11-626-X, no. 008), quoted in Andrew Jackson, “Up Against the Wall,” Just Labour 20 (2013): 51, at 54; oe c d, Divided We Stand; Lars Osberg, “Increasing Inequality,” in Unions Matter: Advancing Democracy, Economic Equality, and Social Justice, ed. Matthew Behrens (Toronto: Between The Lines, 2014), 71. 28 Andrew Sharpe and Evan Capeluck, The Impact of Redistribution on Income Inequality in Canada and the Provinces, 1981–2010 (Ottawa: Centre for the Study of Living Standards Research Report 2012-08, 2012). 29 Federico Cingano, Trends in Income Inequality and Its Impact on Econo­ mic Growth (Social, Employment and Migration Working Paper No. 163) (Paris: oec d, 2014); Andrew G. Berg and Jonathan D. Ostry, Inequality and Unsustainable Growth: Two Sides of the Same Coin? (Staff Discussion Note: S DN /11 / 08) (Washington, dc: i m f, 2011); Lars Osberg, Can Increasing Inequality Be a Steady State? (Working Paper 2014 / 01) (Paris: o ec d Statistics Working Papers, 2014); The Conference Board of

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Canada, “Canadian Income Inequality: Is Canada Becoming More Unequal?” (Ottawa: Conference Board of Canada, 2011). 30 See, generally, Jacob S. Hacker and Paul Pierson, “Winner Take-All Politics: Public Policy, Political Organization, and the Precipitous Rise of Top Incomes in the United States,” Politics & Society 38 (2010): 152. 31 Marc Franette, David Green, and Kevin Milligan, “Taxes, Transfers and Canadian Income Inequality,” Canadian Public Policy 35 (2009): 389. 32 Derek Burleton, “Are Medium-Skilled Jobs in Canada Experiencing a Hollowing-Out, U.S.-Style?” (Toronto: TD Bank Special Report, 26 February 2013). 33 Claudia Goldin and Lawrence F. Katz, The Race Between Education and Technology (Cambridge, m a: Harvard University Press, 2008). 34 Elena Meschi and Marco Vivarelli, “Globalization and Income Inequality” (Discussion Paper No. 2958) (Bonn, Germany: Institute for the Study of Labor, 2007); Robert E. Baldwin, The Decline of US Labor Unions and the Role of Trade (Washington, dc: Peterson Institute for International Economics, 2003). 35 Joseph Stiglitz, “Inequality Is Not Inevitable,” New York Times (27 June 2014). 36 David Card, Thomas Lemieux, and Craig W. Riddell, “Unionization and Wage Inequality: A Comparative Study of the U.S., U.K. and Canada,” Journal of Labor Research 25 (2004): 519. 37 Bruce Western and Jake Rosenfeld, “Unions, Norms and the Rise in American Wage Inequality,” American Sociological Review 76 (2011): 513; John Schmitt and Alexandra Mitukiewicz, “Politics Matter: Changes in Unionization Rates in Rich Countries, 1960–2010” (Washington, dc : Centre for Economic and Policy Research, 2011). 38 il o, World of Work Report 2008, 83. 39 Florence Jaumotte and Carolina Buitron, “Power from the People,” in Finance & Development (March 2015) (Washington, dc : imf, 2015) 31. See also Richard Dobbs et al., The World at Work: Jobs, Pay and Skills for 3.5 Billion People (New York: McKinsey & Company, 2012), which found that labour’s share of income in advanced economies – nine western and southern European countries, plus the United States and Australia – had declined by about 7 percentage points since the early 1980s, approximating the decline in unionization rates in these countries. 40 A Canadian study has linked some of the four-decade decline in federal election voter turnout in Canada and four other English-speaking countries to the decline in unionization. The study found that union membership was associated with a roughly 10–12 percentage point increase in the

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propensity to vote. See Alex Bryson, Rafael Gomez, Tobias Kretschmer, and Paul Willman, “Workplace Voice and Civic Engagement: What Theory and Data Tell Us about Unions and Their Relationship to the Democratic Process,” Osgoode Hall Law Journal 50 (2012–13): 965. See also Patrick Flavin and Michael T. Hartney, “When Government Subsidizes Its Own: Collective Bargaining Laws as Agents of Political Mobilization,” American Journal of Political Science 59 (2015): 1. 41 Andrew Jackson, Work and Labour in Canada, 2nd ed. (Toronto: Canadian Scholars’ Press Inc., 2010), ch. 8. 42 Rafael Gomez and Konstantinos Tzioumis, “What Do Unions Do to c eo Compensation?” Centre for Economic Performance Discussion Paper no. 720 (2007). See also i lo, World of Work 2008, ch. 2. 43 ilo, World of Work 2008, 86. 44 Diane Galarneau and Thao Sohn, Long-Term Trends in Unionization (Ottawa: Statistics Canada, 2013). 45 Jordan Brennan, A Shrinking Universe: How Concentrated Corporate Power Is Shaping Income Inequality in Canada (Ottawa: Canadian Centre for Policy Alternatives, 2012). 46 Card, Lemieux, and Riddell, “Unionization and Wage Inequality.” 47 Western and Rosenfeld, “Unions, Norms and the Rise in American Wage Inequality.” 48 Susan Johnson, “The Impact of Mandatory Votes on the Canada-U.S. Union Density Gap: A Note,” Industrial Relations 43 (2004): 356; John Godard, “Do Labor Laws Matter? The Density Decline and Convergence Thesis Revisited,” Industrial Relations 42 (2003): 458; Daphne Gottlieb Taras and Allen Ponak, “Mandatory Agency Shop Laws as an Explanation of Canada-U.S. Density Differences,” Journal of Labor Research 22 (2001): 541; Craig W. Riddell, “Unionization in Canada and the United States: A Tale of Two Countries,” in Small Differences that Matter: Labor Markets and Income Maintenance in Canada and the United States, ed. David Card and Richard B. Freeman (Chicago, il: University of Chicago Press, 1997). 49 Michael Lynk, “Labour Law and Labour Rights: The Wagner Act in Canada,” in Unions Matter, ed. Behrens, ch. 4; Michael Lynk, “Labour Law and the New Inequality,” University of New Brunswick Law Journal 59 (2009): 14. 50 Timothy J. Bartkiw, “Manufacturing Descent? Labour Law and Union Organizing in the Province of Ontario,” Canadian Public Policy 39 (2008): 111, at 120. 51 The reforms to the Canadian Wagner Act model between the 1960s and the 1980s saw such legislative additions as public-sector collective

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bargaining, first contract arbitration, bans or restrictions on strike-­ replacement workers, union security provisions, post-strike reinstatement rights, bans on permanent replacements, the widening of the definition of “employee” for the purposes of collective bargaining, and technological change re-openers. Employers also gained changes as part of the legislative quid pro quo, including employer-initiated strike votes and enhanced cooling-off periods before a strike. See also Gad Horowitz, Canadian Labour in Politics (Toronto: University of Toronto Press, 1968). 52 These exceptions would include the incremental reforms to the Canada Labour Code in 1998 under the Chrétien government and to the Mani­ toba Labour Relations Act in 2000 under the newly elected ndp government of Gary Doer. 53 See Craig W. Riddell, “Using Social Science Research Methods to Evaluate the Efficacy of Union Certification Procedures,” Canadian Labour and Employment Law Journal 12 (2005): 313; Sara Slinn, “An Empirical Analysis of the Effects of the Change from Card-Check to Mandatory Vote Certification,” Canadian Labour and Employment Law Journal 11 (2004): 259; Craig W. Riddell, “Union Certification Success under Voting versus Card-Check Procedures: Evidence from British Columbia, 1978– 1998,” Industrial and Labor Relations Review 57 (2004): 493; and Susan Johnson, “Card Check or Mandatory Vote? How the Type of Union Recognition Procedure Affects Certification Success,” The Economic Journal 112 (2002): 344. 54 Felice Martinello, “Mr. Harris, Mr. Rae and Union Activity in Ontario,” Canadian Public Policy 26 (2000): 17. 55 See the electronic inventory of restrictive labour legislation (including back-to-work laws and collective bargaining restrictions) maintained by the Canadian Foundation for Labour Rights: http://labourrights.ca/ restrictive-labour-laws, last accessed 24 July 2016. See also Eric Tucker, “Shall Wagnerism Have No Dominion?” Just Labour 21 (2014): 1. 56 Harry W. Arthurs, “Making Bricks without Straw” (Osgoode c lpe Research Paper, 28 / 2012), 18.

18 “A New Thing: Shall Ye Not Know It?”: On Living Metaphors in Transnational Labour Law Adelle Blackett Montreal

Behold, I will do a new thing; now it shall spring forth; shall ye not know it? Isaiah 43:19 Freedom is like religion to us Justice is juxtaposition in us Justice for all just ain’t specific enough. “Glory,” from the soundtrack of Selma, Common & John Legend, 2014

1 introduction

It was the first day of Black History Month. Sunday, 1 February 2015, I sat with my family in a not entirely familiar pew in Union United Church, founded in 1907. Union United was the first AfricanCanadian church in Montreal, founded by the families of black sleeping-car railway workers on the nascent Grand Trunk Canadian Pacific that is the iconic metaphor for the unification of Canada from east to west. Ironically, but not surprisingly, the work was segregated. Black men were recruited from the United States, based upon their reputation as sleeping-car porters in the segregated US railway system; descendants of black Loyalists from Nova Scotia, and men from

On Living Metaphors in Transnational Labour Law 287

the West Indies, also filled the ranks.1 Along with their families, they were housed in “quarters” established by the railways for their workers in the immigrant, working-class “St Antoine Area,” later to be called Little Burgundy.2 This community founded a church, a community centre, and a Montreal branch of the United Negro Improve­ ment Association.3 The institutions were a basis for community organizing, economic and social support, workplace inclusion claims and collective-action strategies, and other forms of resistance for generations. But this Sunday morning in 2015, while the community was largely the same, and the songs encouragingly familiar, an aging congregation inhabited a temporary, “newer” building in a more middle-class but also struggling neighbourhood. In this transition period, when parishioners raised funds to renew the old, familiar, but uninhabitable building, a new thing was happening. It was in community-rooted churches like this one that I learned about the Moses of Harry Arthurs’s lovely, eloquent recent tribute to leading law and development, and transnational labour law scholar David Trubek. The Moses story is told with particular urgency in the black community; it is a lived history, a story that my community has made its own. Moses’s delivery of his people from Egypt to the Promised Land remains the most powerful of metaphors, which Arthurs uses with aplomb to capture the “improbable endeavour” of constructing a regime of transnational labour regulation, “like making bricks without straw.”4 He wittily urges us to [r]ecall the origins of the phrase. In one of history’s earliest recorded labour disputes, the Israelites – a community of undocumented migrant workers – petitioned on religious grounds for a three-day respite from their work at Pharoah’s brickworks. Pharaoh took umbrage, and ordered the Isra­ elites to maintain production. Moreover, to discourage future impertinences, he refused to provide them with straw, the binding agent that holds mud bricks together. Instead, he decreed, the Israelites had to provide their own straw, which was very hard to come by locally and had to be sourced through an extended supply chain. Pharaoh’s unfair labour practices in turn provoked the world’s first ­general strike, the Exodus.5 For the communities of descendants of enslaved Africans in the Americas, the Moses story takes on a further dimension. The Israelites,

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after all, were held in bondage; they were slaves, who emancipated themselves, and searched for their promised land. Quite literally, Moses became the name of a former slavewoman, also known as Harriet Tubman. The Moses I learned about not only emancipated herself, but repeatedly crossed state borders to return, in the deepest act of solidarity, to the land of the Pharoahs, to emancipate her people. No waters were parted for her. Courageous, skilful, and resolutely unromantic, Moses navigated under the cover of night through covert networks of safe homes called the “underground railroad.”6 She guided men, women, and children to a new place, the “promised” – if, ultimately, not entirely free – land called Canada.7 2 f r o m m e ta p h o r to c r i t i q u e

My community has made the Moses story its own, and has also made it new. So, as I sat in church, listening to the Reverend Emmanuel Ofori during Black History Month tell celebrants not only to look back, but to imagine something new, I thought of Harry Arthurs. Through a lifetime intellectual challenge to legal centrism, Arthurs has allowed us to see, with great acuity, sites of historical and contemporary legal pluralism in administrative action generally, and in labour law in particular. Yet, looking out on labour law in the new economy, he has not only acknowledged the unwillingness and / or incapacity of (differently situated) nation-states to regulate, and considered the embeddedness of labour regulatory frameworks in the technological and social systems of varieties of capitalism; he has also resisted the idea that labour solidarity can and will look like it did before: he proclaims the “mysterious disappearance of Israelites.” This challenge is, in part, transnational, as [w]orkers scattered along the now-ubiquitous global value chains not only often lack the prerequisites for solidarity – common experiences, values and rights; they can seldom even identify their common corporate adversary. And worse yet, they are effectively in competition with each other.8 In his critique, Arthurs takes us beyond familiar challenges to the  borders of labour law. His work reaches past important initial attempts to preserve a resolutely protected centre of known employment relationships, while extending normativity progressively outward to comparable “productive” workplaces and encompassing

On Living Metaphors in Transnational Labour Law 289

those with incrementally comparable justice claims. Other scholars, focusing on gendering labour law, have scrutinized the impact of dominant centrings of the standard employment relationship through the male breadwinner model. With attention to life cycles that include care, they have argued that it is necessary to move away from an approach to labour and social security law that is rooted in gendered assumptions of the standard employment relationship.9 In other words, the marginalization of some workers may not simply be an accompanying or even growing feature of the standard employment relationship, but a consequence of it; the standard employment relationship both creates and sustains its own margins. Contemporary, North-South conceptual deepening has led the i l o to centre a somewhat contested framework of “decent work for all,”10 which, at its best, represents a renewed focus on the worker in a broad sense, rather than on the employee in a narrow sense, wherever that worker happens to reside and whatever his or her status there.11 Capacious as it might be, however, “decent work for all” has yet to face the following prospect: that dominant conceptions of labour law – so repeatedly transplanted to places where it was expected only to cover a fraction of the working population, that is, “industrial working man”12 – were in fact designed to exclude, temporally, spatially, and conceptually, the overwhelming majority of an amorphous, migrating “informal” economy, at least until they “formalized.” While workers in the decolonizing global South claimed “inclusion” in an emancipatory labour law project, the “protections” that they received were sometimes poorly mapped onto the post-colonial reality, and heavily embedded in received ideas about “modernization.” In a neoliberal context in which the political stakes of regulatory models are high, labour lawyers are understandably cautious in resisting the suggestion that their classic models may also reflect “a hegemonic global order radiating outwards from Europe and North America towards the ex-colonial world.”13 After all, labour law was, and continues to be, fought for by post-colonial workers themselves. But as Sundya Pahuja powerfully frames it, Third World “moments of assertion” are susceptible to “capture and transformation … into something else through the operation of a particular rationality.”14 They re-emerge in a particular development strategy: the rule of law.15 We have witnessed such capture in labour law, and it underscores the challenge of both protecting acquis while resolutely grappling with the peripheries.16 “Decent work for all” has needed to remain grounded in an at once older and newer normative ideal: social justice.

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3 f r o m c r i t i q u e to p r o p h e c y ? e m b r ac i n g p e r i p h e r i e s

There is a further critique, around which Harry Arthurs’s narrative, perhaps improbably, hovers. Harry Arthurs urges us to consider that, if a “transnational solidarity” arises, it will do so “only when ‘hardworking’, ‘middle-class’, ‘home-owning’ men and women who have lost their jobs and savings, their dignity and hopes, come to perceive that they do indeed share their predicament with people around the world, and that their best prospects lie in seeking solidarity for constructive action at all levels – locally, nationally and across traditional state and class boundaries.”17 Arthurs’s affirmation could have been written a few decades ago about the fragile emerging middle classes in developing countries that were devastated by structural adjustment and currency devaluations in much of Africa and Latin America.18 It also resonates with Alvaro Santos’ recent suggestion, in  a presentation on labour law and informality, that labour law might usefully have concerned itself not only with the proletariat, but also with the petty bourgeoisie, evocatively encapsulated by Santos as those seeking “40 acres and a mule.”19 This expression, of course, was the promise of reparations made to the emancipated slaves in the United States, who aspired to much more than simply to be paid in wages for their ongoing, subordinated labour.20 And it reminds us that the stratification of workers beyond familiar solidarities is anything but new. Solidarities constantly need to be reinvented, and lasting solidarities must challenge the maintenance of peripheries that are simultaneously temporal, spatial, and conceptual.21 First, it is necessary to craft an idea of labour “law” that came “before” industrialization. Labour historians – as well as historians of the development of capitalism – have increasingly been ready to take on a vision of the origins of their field that acknowledges continuity as well as disjuncture in the construction of labour and a pluralist “labour law.” Historians on the development of labour and capital tell a tale of “blurred boundaries between categories of labor, assuring the interchangeability of different workers along a continuum of slave-for-life to transient day laborers – with term slaves, rented slaves, self-hiring slaves, indentured servants, redemptioners, apprentices, prisoners, children, and paupers occupying the space in  between.”22 They tell tales of job specialization, with plantations resembling “proto-industrial, self-contained villages” – and, of

On Living Metaphors in Transnational Labour Law 291

course, a vision of the market that could both entrench slavery and undermine it. They tell of a sobering yet dynamic reworking of time and space, blurring human importation with immigration, and challenging facile industrial capitalist dichotomizations of freedom and abolitionism.23 This work vastly enlarges the scope of “who counts” as a worker – and complicates mainstream labour history’s preference for – and current labour law’s privileging of – the citizen worker. Second, it is necessary to challenge the rigid demarcation of a productive market as the terrain of labour law, to the exclusion of social reproduction. Beyond an analysis of externalization, a focus on care work must take it to be conceptually, fundamentally market-enabling if not market-creating.24 And third, it is necessary to challenge the resolutely contemporary, and transnational, framing of the West­ phalian nation-state, alongside traditional territorial borders. Scholars in our field must face the geopolitical and in particular the NorthSouth borders – through which production and the delivery of services are moderated with little concern about the sources of the colonial dispossession that entrenched them, and even less about the persisting subordination of those who currently inhabit them.25 That the fragile “middle” classes of supranational European states such as Greece face – and resist – the application of structural adjustment policies tested upon the fragile emerging classes of post-­ colonial states such as Bénin or Bolivia should enable us to see with greater acuity how certain kinds of peripheries are both constitutive of the market, and constitutive of structures and relationships of inequality that eat away at how labour law frames its core narrative, and its others. A labour law from the peripheries – of the South and the North – must break with the tendency simply to export and radiate outward onto more and more employment-like circumstances. Instead, it must embark on a different process, of mapping how work, however “informal,” is currently configured. Otherwise, we might still be caught limiting our true imagination of labour law in the South to only a few places – such as India, South Africa, or Brazil – that have sufficiently large formal economies to “warrant” our attention, while ignoring the surrounding sea of informality until it is “formalized.” Similarly, on China, we might reason that its productive capacity by scale alone strikes sufficient fear in our own ability to sustain domestic – not to mention export – markets for services and for products that it compels our attention as “labour” lawyers. I would argue that

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the inquiry has to be deeper, and broader, into each of these countries’ peripheries too. This broader mapping is, in part, underway in the plural attempts to understand “informality” in the South and in the North, and particularly in the hard work of capturing the cross-border interdependencies that make places such as the Congo (coltan for cell phones), Cambodia (stitching of garments), and Nepal (sourcing migrant domestic or construction workers) seem not quite so far away. Peer Zumbansen urges a painstaking law and development inquiry that “remains cautious, self-critical and never satisfied, one that continues to draw on … a complex body of ‘knowledge’ … to which one already and constantly contributes.”26 Still, in our conceptualization of “labour” in labour law, our categories still lead us to ask, “Am I that name?”27 4 “ to t h e p r o m i s e d l a n d ? ” –

towa r d a n   “ a lt e r n at i v e i m ag i n a r y ”

To remove fear from markets, to prevent market economics from becoming market societies:28 this is a significant part of what labour law has traditionally been for, and it captures the deepened trans­ national challenge. But to state that is not to obviate the need for a  labour law reconstructed from the peripheries – global capital effectively marshals the margins, precisely to ensure its normative control over what might have been thought to be the core, the nowprecarious standard employment relationship in the global North. To construct alternative futures, we need to acknowledge and tell “alternative histories – histories of resistance.”29 The stories must entail looking, as does Arthurs, squarely and unromantically at the challenge to solidarity; they must include seeking out and telling alternative stories of how solidarity across peripheries is constructed and reinvented.30 Harriet Tubman, alive to the deep limits of Canada’s promise of inclusion, still knew enough about abject human commodification to move beyond critique to the “reconstructionist” action of delivery. That we may not know what a labour law emerging from the peripheries should look like, should not stop us from acting on the justice of the claim. Indeed, a renewed labour law should reflect how workers from the peripheries stake their claim to mediate market relationships. Harry Arthurs captures the identification challenge aptly, at the outset of Without the Law:

On Living Metaphors in Transnational Labour Law 293

Nothing just happens. Legal institutions and ideas do not simply emerge, evolve, reshape themselves, deteriorate or disappear of their own accord. At one time, perhaps, we believed that our legal system was created by a divine hand … Today we generally accept that legal development is the product of many forces – some internal, some external; some intellectual, some socio-economic; some ancient, some recent. The tasks of the historian are to try to identify and assess those forces and to chronicle their effects. Yet our ability to “identify” depends upon the categories or labels we have available to apply the events, and our capacity to “assess” those events depends upon the intellectual tools with which we attempt to do the job.31 The intellectual tools are being rethought. If the Commandments handed down on Mount Sinai are considered by Arthurs to be “hard law,”32 it need not be because the divine hand is analogous to the state; rather, what really binds us in our quest for a “new thing” is the commitment to something deeper than contemporary hegemonic incarnations of Pharoah or Caesar. “Hard law” in the absence of the state may still bring us back to an old, elusive idea, dear to both Moses, but embraced with new conceptual, spatial, and temporal tools: emancipatory social justice. A new thing is springing up around, beyond, and, perhaps, despite the idea of labour law. Harry Arthurs has called on us to conceptualize it, moving it ever so carefully away from that which we have told ourselves about labour law in the past. Harry Arthurs has had the courage to “contemplate the end of labour law as a distinct domain of scholarship and practice and to imagine its absorption into the broader legal field that [he has] called ‘the law of economic subordination and resistance.’”33 I am willing to wager, moreover, that the “new thing” – for neither capitalist expansion nor colonial dispossession is a “thing,” of course, but rather they are multivalent relational structures of domination to which counter-hegemonic globalization is a crucial challenge – if constructed from the peripheries, will be a resolutely unromantic, living law, and that it will be wrought out of resistance, embodying elements of what Nancy Fraser captures in her account as necessarily but not only redistribution, and necessarily but not only recognition: it resolutely must include representation.34 Moreover, this “new thing” need not require further disposession or alienation from historically

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beleaguered yet amazingly grace-filled sites of solidarity, of the kind upon which historically black churches have been built.35 Those recons­tructed, refortified, and renewed “homes”36 remain critical physical, conceptual, and, yes, spiritual bases from which to realize law’s emancipatory potential. N ot es   1 Agnes Calliste recalls that the “history of Blacks on Canadian railroads has been partly influenced by the history of its counterparts on American railroads.” She traces the “racially submerged split labor market policies” of Canadian railroads, which she finds were “more rigid” than those in the United States. Agnes Calliste, “The Struggle for Employment Equity by Blacks on American and Canadian Railroads,” Journal of Black Studies 25 (1995): 297, at 297. The core Wagner Act labour law notion of the duty of fair representation arose under a US Supreme Court interpretation of the National Railway Act. It allowed the Brotherhood to exclude black workers from membership in the union, imposing instead a “duty of fair representation” over the bargaining unit. Steele v Louisville & N.R. Co. et al., 323 U.S. 192 (1944). As Calliste’s article recalls, it is a history that prevailed in the industry in Canada.   2 June Bertley, “The Role of the Black Community in Educating Blacks in Montreal from 1910 to 1940, with Special Reference to Reverend Dr. Charles Humphrey Este” (Montreal, qc : M.Ed. thesis, McGill University, 1982).   3 Leo W. Bertley, Canada and Its People of African Descent (Pierrefonds, q c: Bilongo Publishers, 1977).   4 Harry Arthurs, “Making Bricks without Straw: The Creation of a Trans­ national Labour Regime,” in Critical Perspectives on Global Governance: Liber Amicorum David M. Trubek, ed. Gráinne de Búrca, Claire Kilpatrick, and Joanne Scott (Oxford, u k : Hart Publishing, 2014), 129–42.   5 Ibid., 129.   6 Historian Dorothy Williams’s work offers an important corrective to the narrative of the underground railroad, reminding the reader of its origins in Canada to free slaves in Canada. See Dorothy W. Williams, The Road to Now: A History of Blacks in Montreal (Montreal, qc : Véhicule Press, 1997).   7 Much has been written about the existence of slavery in Canada, and the enslavement of some persons of African descent who fled the United

On Living Metaphors in Transnational Labour Law 295

States. See, for example, Barrington Walker, The African Canadian Legal Odyssey: Historical Essays (Toronto: University of Toronto Press, 2012); Afua Cooper, The Hanging of Angélique: The Untold Story of Canadian Slavery and the Burning of Old Montréal (Toronto: Harper Collins Canada, 2006).   8 Arthurs, “Making Bricks without Straw,” 140.   9 See, in particular, Leah Vosko, Managing the Margins: Gender, Citizenship and the International Regulation of Precarious Work (Oxford, uk : Oxford University Press, 2010); Alain Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (Oxford, uk : Oxford University Press, 2001). 10 International Labour Conference, Decent Work: Report of the Director General (Geneva: 87th General Session, June 1999), http://www.ilo.org/ public/english/standards/relm/ilc/ilc87/rep-i.htm, last accessed 24 July 2016. Harry Arthurs gave concrete application to this notion in his report, Fairness at Work, Federal Labour Standards for the 21st Century (Ottawa: hrs dc , October 2006), http://www.labour.gc.ca/eng/standards_equity/st/ pubs_st/fls/page00.shtml, last accessed 24 July 2016. 11 The indeterminacy in that move (is employment centred or decentred?) is no better seen than in the broadening captured by the Decent Work for Domestic Workers Convention and Recommendation, 2011 (No. 189), and in the contestation over the paradoxical notion of “informal employment” in the current ilo attempt to elaborate a recommendation on the topic. 12 Frederick Cooper, Decolonization and African Society: The Labor Question in French and British Society (Cambridge: Cambridge University Press, 1996), 141–2. 13 Hillary Charlesworth and David Kennedy, “Afterward: And Forward – There Remains So Much We Do Not Know,” in Anne Orford, International Law and Its Others (Cambridge: Cambridge University Press, 2009), 403. 14 Sundhya Pahuja, Decolonising International Law: Development, Econo­mic Growth and the Politics of Universality (Cambridge: Cambridge University Press, 2011), 2–3 (drawing on different economic law examples). 15 Ibid. 16 Adelle Blackett, “Labour Law, Trade and Development: A Contextualization,” in Labour Law and Worker Protection in Developing Countries, ed. Tzehainesh Teklè (Oxford, u k : Hart Publishing, 2010). 17 Arthurs, “Making Bricks without Straw,” 134. 18 See, for example, Achille Mbembe, On the Postcolony (Berkeley and Los Angeles, c a : University of California Press, 2001); Maria Lorena Cook,

296 Adelle Blackett

The Politics of Labor Reform in Latin America: Between Flexibility and Rights (University Park, pa: Penn State University Press, 2007). 19 Labour Law Casebook Group Meeting, Cornell University, Ithaca, ny, 26 June 2014. 20 Ta-Nehisi Coates, “The Case for Reparations,” The Atlantic (June 2014), http://www.theatlantic.com/features/archive/2014/05/the-case-forreparations/361631. 21 I explore three of labour law’s peripheries, and their link to resistance, in fuller detail in Adelle Blackett, “Emancipation in the Idea of Labour Law,” in The Idea of Labour Law, ed. Guy Davidov and Brian Langille (Oxford, uk : Oxford University Press, 2011), 420–36. 22 Seth Rockman, Scraping By: Wage Labor, Slavery and Survival (Baltimore, m d: Johns Hopkins University Press, 2010). 23 See Walter Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Cambridge, m a : Harvard University Press, 2013), 399. 24 Much excellent scholarship has been written on the care-work peri­phery, but a particularly provocative “cautionary tale” is found in Richard Michael Fischl, “A Woman’s World: What if Care Work Were Socialized and Police / Fire Protection Left to Individual Families,” in Labour Law, Work and Family: Critical and Comparative Perspectives, ed. Joanne Conaghan and Kerry Rittich (Oxford, u k : Oxford Uni­versity Press, 2005), 339. Specifically on underpaid domestic work, see, generally, the special issue on “Decent Work for Domestic Workers,” Canadian Journal of Women and the Law 23 (2011): 1. 25 This familiar theme amongst scholars in the tradition of Third World approaches to international law is canvassed specifically in relation to transnational labour law by several of the 41 contributors to Research Handbook on Transnational Labour Law, ed. Adelle Blackett and Anne Trebilcock (Cheltenham, u k: Edward Elgar Publishing, 2015). 26 Peer Zumbansen, “Knowledge in Development, Law and Regulation, or How Are We to Distinguish Between the Economic and the NonEconomic?” in Critical Perspectives on Global Governance, ed. Gráinne de Búrca et al., 103, at 112. 27 See, for example, Denise Riley, “Am I That Name?” Feminism and the Category of “Women” in History, rev. ed. (Minneapolis, mn: Uni­versity of Minnesota Press, 2003). 28 Frank Cunningham, “Market Economies and Market Societies,” Journal of Social Philosophy 36 (2005): 129, at 137. 29 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005). See also Kenneth

On Living Metaphors in Transnational Labour Law 297

Mack, “Rethinking Civil Rights Lawyering and Politics in the Era before Brown,” Yale Law Journal 115 (2005): 256 (insisting on moving beyond liberal case-based rights narratives and the revisionist literature built on them, to challenge the starting assumption that liberal legalism was the starting civil rights claim – in particular, he finds much more robust debates over and engagements with structural inequality). 30 See, for example, Ashwini Sukthankar, “Global Organizing and Domestic Constraints,” in Research Handbook on Transnational Labour Law, ed. Blackett and Trebilcock, 37. 31 Harry W. Arthurs, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto Press, 1985). 32 Arthurs, “Making Bricks without Straw,” 135. 33 Ibid., 141. See also Harry W. Arthurs, “Labour Law as the Law of Economic Subordination and Resistance: A Thought Experiment,” Comparative Labour Law and Policy Journal 34 (2013): 585. 34 Nancy Fraser, Scales of Justice (New York: Columbia University Press, 2009). See also Glen Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis, mn: University of Minnesota Press, 2014), which offers crucial correctives to theories of recognition, drawing largely on Frantz Fanon; and Harry W. Arthurs, “Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields,” Le Pluralisme juridique / Legal Pluralism, Special Issue, Canadian Journal of Law and Society 12 (1997): 219–46. 35 It is impossible not to pay tribute to the Mother Emmanuel African Methodist Episcopal Church congregation, which has responded to historical and exceedingly contemporary racist terror with “amazing grace.” See, in particular, “President Obama Eulogizes Charleston Pastor as One Who Understood Grace,” The New York Times (26 June 2015). 36 “Union United Church Returns Home after 4 and a Half Years” (press release): http://www.unionunitedchurchmtl.ca/Documents/PressRelease2015-06-09.pdf, last accessed 24 July 2016.

19 Inequality, Gender Violence, Human Rights Sally Engle Merry New York University

1 introduction

In a talk he gave in 2014, Harry Arthurs asked one of the most important questions of our times: in the face of the now-recognized growing economic and social inequality of advanced democratic states and the relentless dismantling of the welfare state and public infrastructure, including universities, transportation, and social security, what role can law play? The rule of law is frequently trumpeted as the solution to corruption-generated inequality, while human rights are advanced as a set of ideas and laws that promises protection to the most vulnerable. But does law constrain the increasing concentration of wealth and political power? Harry asks this question with reference to constitutions: are they able to achieve the improvements in equality that so many of them promise? He concludes, following E.P. Thompson’s famous dictum, that, in the face of the enormous inequalities of society, the rule of law offers something: EP Thompson, the Marxian social historian, memorably (and controversially) reminded us that “the rule of law is an unqualified human good” (Thompson 1975: 266). To acknowledge its limits, to accept that it is incapable of revising the “real constitution” that is the source of inequality and injustice, is not to deny its practical value.1

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Arthurs’s provocative article builds on his abiding concern with inequality and labour law, with the possibilities of social justice and the ways in which law can contribute to it. His work points to the inadequacy of rights alone to produce social justice, and the limitations of thinking of social justice exclusively in terms of rights. The advance of neo-liberalism, now challenged largely by ideas such as human rights, while its claims to efficiency and responsibility and its capacity for job creation seem unassailable in the political domain, shows the limitations of an individual rights framework in contesting the concentration of wealth and power in the hands of the few. His critiques of the rights-conscious United States, which has strayed far from its earlier, more socialist ideals, underscore the dangers of focusing on justice only in terms of individual rights rather than on the collective good. Harry’s insights have continued to shape both my work and that of many others, as the need for a more sustained critique of the structural conditions of power under capitalism becomes clearer. Harry’s evocation of E.P. Thompson conforms to my own views of the possibilities of law under these conditions of extreme concentration of power. The law has always served economic and political interests, as many critical legal scholars have shown, yet it retains some promise of representing the public interest. It is notable that, in spite of the extent to which law (in general) supports the powerful, many poor and vulnerable groups – such as indigenous communities, battered women, disabled groups – turn to the law to protect their interests, even though the possibility for radical change is limited. We have moved from a time in which these inequalities justified radical revolution, to one in which the law, with its ability to tweak relations of inequality, has become one of the only places to turn. As terrorist organizations pursue violent approaches to change, the appeal of legal strategies for change increases for many of those who face injustice, as well as for those who hope to maintain their control of states and economies. One of the legal regimes that appears to offer aid to the less powerful is that of human rights. While it has been deeply criticized for its relationship to power and expertise,2 it has also been mobilized by activists dealing with a wide range of problems. While it is unclear to what extent this system of law, as law, has reduced inequalities, it has clearly provided a language for talking about injustice and facilitated

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the creation of alliances across a wide range of distinct groups working on quite different problems, from housing to food to torture, for example. Does this system of law serve to challenge what Harry Arthurs calls the “real constitution,” the ideological assumptions about society that govern what happens more than the actual constitution does?3 The human rights system, particularly with regard to the issue of violence against women, promises protection from violence, yet it does so in ways that are often unwelcome (such as police intervention) or ineffective. Nevertheless, the claims that women’s rights are human rights and that no woman should be battered have challenged the idea that these actions are a form of “appropriate discipline” that male heads of families are entitled to dispense to “wayward women.” To some extent, human rights ideas have redefined the meanings of such acts of violence. Yet, they have not addressed the structural inequalities of poverty, racism, class inequality, and other factors that contribute, in very significant ways, to the patterns of gender inequality that allow gender-based violence to take place.4 Violence is a problem for all women in an ideological sense, but all women do not suffer equally. Those vulnerable to other inequalities are more likely to experience this one as well. Moreover, it is not only vulnerable women who suffer violence. It is increasingly clear that men in vulnerable positions, such as prisons, are severely victimized by sexual as well as physical violence. Those outside the heteronormative gender regime also experience violent forms of gender policing. This is a problem of inequality, with violence disproportionately imposed on those least able to resist or exit abusive relationships. 2 the possibilities of human rights f o r   tac k l i n g i n e q ua l i t y

The turn to human rights marked a major shift in ways of thinking about how to achieve social justice in the late twentieth century. During the late nineteenth to mid-twentieth centuries, socialism – in various forms – represented a widely accepted ideal of social justice, alongside democracy and liberalism. In practice, achieving a communist state, a decolonized state, or even a democratic state typically required some level of violence. While Karl Marx and Frantz Fanon thought that violence was necessary for change, human rights theory did not generally assert that violence was required. A violent revolution might be necessary to transform the basic relations of production

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which were the source of social and economic inequality in Marxist theory, but achieving human rights was imagined as the product of the pressure of civil society and the international community. The human rights path to a just society was that of improved law and governance: democracy, the rule of law, and the protection of individual rights. The human rights approach sought for civil society and the international community to put pressure on states and thereby require them to improve human rights compliance. It did not directly attack economic and political inequality, but focused on forms of discrimination and exclusion. Even the system of social and economic rights sought to build a floor of adequacy for all, rather than to reduce disparities among the rich and the poor. As economic inequality increased at local, national, and global levels, activists found that the human rights system was more amenable to promoting better governance than to reducing inequality. Civil society and the international community demanded that states treat their vulnerable populations better, but had to do so within the existing economic and legal systems. Demands were cabined within the sphere of law. Thus, the potential for violence and chaos was minimized and conflict was managed under the authority of the state or of a coalition of nations. After the experience of violent Marxist and Maoist revolutions and the rise of new forms of international terrorism, both civil society activists and states found the less violent human rights approach appealing. Instead of overturning the social order, human rights sought to retain the overarching control of both law and the state, but sought to make it more accountable, less discriminatory, and a better protector of the vulnerable. In doing so, this approach reinforced – rather than challenged – the state. In his presidential address to the Law and Society Association in 2013, Michael McCann suggested reasons why rights are not more effective in producing social justice.5 Despite the centrality of rights to social justice ideology, inequality is growing by leaps and bounds, environmental degradation is rampant, and many states, despite ratifying a number of high-sounding human rights conventions, continue to imprison and torture their citizens illegally and to fail to provide basic social and economic rights for their populations. Some sociolegal scholarship suggests that, despite their strong ideological appeal, human rights also fail to deliver much of what they promise, paralleling the experience with civil rights. Faced with these mounting problems, it is easy to conclude that the rights framework has not worked

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well. I think the recurring sense that rights fail to deliver, suggested by a rich body of scholarship on both domestic and international rights struggles, is partly because activists, faced with a lack of alternatives, use rights in places where the framework is not compatible with the problem. In this neo-liberal era, rights are virtually the only technique for change at the global level. However, for some problems, collective approaches based upon sharing and co-operation have been more appealing, such as in social movements inspired by Maoism or religious doctrines that advocate violence and social purification. Gender violence is one of the areas where the human rights approach has had significant impact, but more as a social movement ideology than as a form of law. In order for it to become part of a social movement, however, human rights ideology must be translated into terms that make sense in a wide variety of communities. 3 human rights and gender violence

The impact of human rights law depends, as does all law, on changing the local consciousness of rights and relationships. In order for human rights ideas to be effective, they need to be translated into local, and situated within local contexts of power and meaning. They need, in other words, to be remade in the vernacular. How does this happen? Do people in local communities reframe human rights ideas to fit into their system of cultural meanings? Do they resist ideas that seem unfamiliar? Examining this process is crucial to understanding the ways in which human rights act in the contemporary world. Remaking human rights in the vernacular is difficult. Local communities often conceive of social justice and fairness in terms quite different from those of human rights activists. They lack knowledge of the relevant documents and provisions of the human rights system. Global human rights reformers, on the other hand, are typically rooted in a transnational legal culture remote from the myriad local social situations in which human rights are needed. Never­ theless, global human rights law has become an important resource for local social movements. As global law is translated into the vernacular, through the work of activists who serve as intermediaries between different sets of cultural understandings of gender, violence, and justice, it offers a new way of conceptualizing such injuries as domestic violence.

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Gender violence provides an ideal issue for examining this process. As a human rights violation, gender violence is a relative newcomer, but, since the 1990s, it has become the centrepiece of women’s human rights. Strenuous activism by non-governmental organizations (n g o s), along with a series of major world conferences on women in the 1980s and 1990s, defined violence against women as a human rights violation. But establishing women’s rights as human rights is still an uphill struggle. Because violence against women refers to bodily injury, as do other human rights violations such as torture, it is a relatively straightforward violation. Like torture, it is about injury, pain, and death. However, in many parts of the world, it appears to be an everyday, normal problem, not a serious violation of human rights. Moreover, because gender violence is deeply embedded in systems of kinship, religion, warfare, and nationalism, its prevention requires major social changes in communities, families, and nations. Powerful local groups often resist these changes. The relevance of human rights for the campaign against violence against women has taken on new importance, as human rights have become the major global approach to social justice. Since the 1980s, human rights concepts have gained increasing international credibility and support at the same time as a growing body of treaties and resolutions has strengthened their international legal basis. The global human rights system is now deeply transnational, no longer rooted exclusively in the West. It takes place in global settings with representatives from nations and ngos around the world. Activists from many countries enthusiastically adopt human rights language and translate it for grassroots people. Vulnerable people take up human rights ideas in a wide variety of local contexts because they offer hope to subordinated groups. An Indo-Fijian lawyer told me, for example, that she had experienced racism and discrimination in Fiji and in New Zealand and only the international human rights system gave her the tools and consciousness to fight back. In the New Territories of Hong Kong, women were denied the right to inherit property under a law passed by the British colonial government and legitimated as ancient Chinese custom, even though it had long since been changed in China. The international human rights language of women’s rights and sex discrimination proved critical to overturning this legislation.6 However, the idea that everyday violence against women is a human rights violation has not been easy to establish, nor has it

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moved readily from transnational to local settings. There are fissures between global settings where human rights ideas are codified into documents and local communities where the subjects of these rights live and work. Human rights ideas, embedded in cultural assumptions about the nature of the person, the community, and the state, do not translate simply from one setting to another. If human rights ideas are to have an impact, they need to become part of the conscious­ ness of ordinary people around the world. Considerable research on law and everyday social life shows that law’s power to shape society depends not on punishment alone, but on becoming embedded in everyday social practices, shaping the rules people carry in their heads.7 Yet, there is a great distance between the global sites where these ideas are formulated and the specific situations in which they are deployed. We know relatively little about how individuals in various social and cultural contexts come to see themselves in terms of human rights. Nor do ideas and approaches move readily the other way, from local to global settings. Global sites are a bricolage of issues and ideas brought to the table by national actors. But transnational actors are often uninterested in local social practices or too busy to understand them in their complicated contexts. Even some national elites share this view. Discussions in transnational settings rarely deal with local situations in context. There is an inevitable tension between general principles and particular situations. Transnational reformers must adhere to a set of standards that apply to all societies if they are to gain legitimacy. Moreover, they have neither the time nor the desire to tailor these standards to the particularities of each individual country, ethnic group, or regional situation. National and local actors often feel frustrated at the lack of attention to their individual situations. The division between transnational elites and local actors is based less upon culture or tradition than upon tensions between a transnational community that envisions a unified modernity, and national and local actors for whom particular histories and contexts are of critical importance. Intermediaries such as n g o s and social movement activists play a critical role in interpreting the cultural world of transnational modernity for local claimants. They appropriate, translate, and remake transnational discourses into and in the vernacular. At the same time, they take local stories and frame them in national and international human rights language. Translators often participate in two cultural spheres at the same time, moving between them with a kind of double consciousness.

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How do ideas about violence against women as a human rights violation, ideas that are produced in global conferences in New York and Geneva, get appropriated in local community centres in Hawai‘i, Delhi, Beijing, Fiji, and Hong Kong? The language of human rights contributes to transnational and local social movements and a gradual rethinking of gender inequality around the world. It creates a political space for reform using a language legitimated by a global consensus on standards. But this political space comes with a price. Human rights promote ideas of individual autonomy, equality, choice, and secularism even when these ideas differ from prevailing cultural norms and practices. Human rights ideas displace alternative visions of social justice that are less individualistic and more focused on communities and responsibilities, possibly contributing to the cultural homogenization of local communities. The localization of human rights reflects the vastly unequal global distribution of power and resources that channels how ideas develop in global settings and are picked up or rejected in local places. Foregrounding the work of intermediaries, people who translate across the cultural boundaries between translational law and local normative orders, would help us to understand the potential of human rights to address the kinds of economic and political inequalities that Harry Arthurs describes. Translators, who are often n g o activists, academics, or local political leaders, convert inchoate ideas of unfairness and anger into rights and entitlements. The emergence of such ideas can fuel protest and challenge inequalities. Such translators are critical if human rights approaches are to make a difference. But recognizing the role of translators depends on abandoning notions of culture as an integrated whole that is, to some extent, untranslatable into other terms. And it requires moving beyond redefining rights and power relations within families, to challenges to the economic and political structures that produce violence against women and maintain inequality. No te s   1 Harry W. Arthurs, “The ‘Majestic Equality’ of the Law: Why Constitu­ tional Strategies Do Not Produce Equality,” 14, paper originally presented at a workshop on Equality, at the Institute for Advanced Studies, Nantes, France, in June 2014; citing E.P. Thompson, Whigs & Hunters: The Origin of the Black Act (London: Allen Lane, 1975).   2 See David Kennedy, “The International Human Rights Movement: Part of the Problem?” Harvard Human Rights Journal 15 (2002): 101–26; Samuel

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  3   4   5   6

  7

Moyn, The Last Utopia: Human Rights in History (Cambridge, ma : Bellnap Press, 2012); and Stephen Hopgood, The Endtimes of Human Rights (Ithaca, n y: Cornell University Press, 2013). Arthurs, “The ‘Majestic Equality’ of the Law.” Sally Engle Merry, Gender Violence: A Cultural Perspective (Malden, ma : Wiley Blackwell, 2009). Michael McCann, “The Unbearable Lightness of Rights: On Sociolegal Inquiry in the Global Era,” Law and Society Review 48 (2014): 245–73. Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago, il: University of Chicago Press, 2006). See, for example, Austin Sarat and Thomas Kearns, eds., Law and Everyday Life (Ann Arbor, m i : Unversity of Michigan Press, 1993); Patricia Ewick and Susan Silbey, The Common Place of Law (Chicago, il: University of Chicago Press, 1998); and Sally Engle Merry, Getting Justice and Getting Even: Legal Consciousness among Working Class Americans (Chicago, i l: University of Chicago Press, 1990).

20 Labour Law and Its “Last” Generation David Doorey and Ruth Dukes York University and University of Glasgow

Harry Arthurs came of age as a legal scholar during labour law’s golden era, when collective labour law was considered transformative and, in terms of regulatory technique, cutting-edge.1 But, as Harry and many others have noted, this period ended sometime around the late 1970s, and labour law has been searching for renewed relevance ever since. The well-worn narrative goes something like this: industrial pluralism, the intellectual project to which Harry devoted so much of his life’s work, is dead, exposed as a temporary and ultimately failed project; “labour,” as a class, has lost its emotive and descriptive power; the labour movement and the institution of collective bargaining are sliding towards irrelevance for a number of reasons, including the disintegration of the standard employment model and the deregulatory pressures generated by globalization. For Harry, the conclusion to be drawn is that we are living already in a world “after labour.”2 Such a thought is sobering indeed to those of us in the early stages of our careers as labour law scholars! Have we arrived at the examination table just in time to confirm Harry’s dismal prognosis? If he is right, then what is left for us to do, other than to issue the subject that we had thought to study with its death certificate? Must we turn our attention instead to alternative fields of the law? Are we truly labour law’s last generation? 1 t h e r i s e a n d fa l l o f l a b o u r l aw

In a series of recent papers, Harry reminded us that labour law is labour law only because the early pioneers of the discipline – including

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his mentor Bora Laskin in Canada, Hugo Sinzheimer in Germany, and Otto Kahn-Freund in Britain – decided, in the early-to-mid-twentieth century, to bundle together disparate administrative, criminal, contract, and tort laws that governed waged employment into a coherent legal field guided by a distinctive normative perspective. This perspective emphasized the power asymmetries inherent in the employment relationship, and the social and economic injustices that resulted therefrom. Labour law comprised those laws that were designed to address such injustices, in large part by enabling (and controlling) forms of collective resistance to them. By reason of the focus on power asymmetries and worker resistance, labour law scholars, in North America and elsewhere, came to associate labour law especially with collective-bargaining law, neglecting the broader scope of the legal rules that affect labour market outcomes and the organization of work. Harry concedes that he himself belonged to this camp, offering, upon reflection, a mea culpa of sorts. The twentieth-century preoccupation with collective-­ bargaining law “impaired the vision of labour law,” he suggests, leaving it under-theorized, ill-prepared to adapt to changing labour-market and political environments, and exposed to the charge that labour law had “become dysfunctional, politically irrelevant, and intellectually ossified.”3 This was the grim situation at the turn of the century, as Harry and many others within the labour law academy turned their scholarly attention to the “future” of the subject. Two recent papers in particular provide insight into Harry’s vision for the future of labour law. In “Labour Law as the Law of Economic Subordination and Resistance: A Counterfactual,” Harry engages in a “counterfactual” by imagining that the pioneers of labour law had “decided that abuses attributed to disparities of economic power were not unique to labour markets.”4 Had they done so, they might have developed a legal field organized around the broader subject matter of how law perpetuates imbalances in economic power and regulates resistance to abuses of law by the more powerful. In a “Law of Economic Subordination and Resistance” text, for example, there would still be a big section on laws that govern the sale of labour and worker resistance to their inherent subordination in the employment relationship. But the text would not stop there, as do most contemporary labour and employment law books. First, the material in the “labour and employment” part of the text would extend beyond the existing boundaries of the field. Labour

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law’s historical preoccupation with one form of work relation – the standard employment relationship – would give way to a broader conception of work that includes employment, but that also accounts for the self-employed and under-employed, and that emphasizes the precarity of all those who sell their labour in order to survive. Second, the textbook would extend beyond a focus on work re­lations. A text on economic subordination and resistance would include chapters on tenants’ rights, consumer laws, welfare laws, farmers and small business co-operatives, and shareholders’ rights. This is Harry’s main point in raising the counterfactual: it is possible to redraw the boundaries of a legal field in ways that help us recognize new patterns and commonalities, an exercise that can leave us better equipped to confront contemporary social and economic challenges. By focusing on economic subordination and resistance, rather than just “employment,” labour law academics might discover new allies, new modes of reasoning, and new commonalities long unnoticed. The second article comprises the text of the inaugural Innis Christie Lecture Harry presented at Dalhousie University in 2010. In “Char­ ting the Boundaries of Labour Law: Innis Christie and the Search for an Integrated Law of Labour Market Regulation,” Harry adopts a nautical theme and embarks on a voyage to re-map labour law’s territory.5 He begins by noting that working conditions and worker power are affected not just by laws, “but by the entire system of political economy that shapes labour market outcomes, as well as political  outcomes.”6 Drawing on this basic insight, Harry proposes a re-­mapping of labour law that situates political economy at its core. This legal field would “aim to chart the plate tectonics of dynamic labour markets, rather than the small-scale detail of individual employment relations, the local topography of workplaces and enterprises or the winds and currents of laws and constitutions.”7 The imagery of plate tectonics draws attention to the many forces, legal and otherwise, that have always influenced labour markets, but that have mostly been omitted from traditional maps of labour law, and overlooked by scholars of the field. Harry provides the examples of tax laws, trade laws, social welfare laws, immigration laws, corporate and securities laws, and intellectual property laws. His proposal is that labour lawyers should extend the boundaries of their legal field to encompass this broader vision of how law and policy shape labour-market outcomes:

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[I]f legal concepts, rules or institutions affect labour market outcomes in some material way, and if those outcomes ultimately influence the rights and interests of workers, then their influence should be documented by labour scholars, understood by labour law students, litigated by labour law practitioners, and taken into account especially by those who design public policies and enact the laws that give them effect.8 Arthurs labels his proposed legal field “The Law of Labour Market Regulation.” He anticipates the critique that re-mapping labour law to encompass all legal rules and institutions that impact upon labourmarket outcomes would stretch labour lawyers and academics far beyond their traditional areas of expertise. Yet, without incorporating a broader understanding of political economy and the forces that drive labour market outcomes, he argues, “we risk purveying legal remedies to clients who in fact are in need of economic power ... [or] ... proposing band-aid statutory improvements or clever tricks of constitutional magic when only fundamental changes in our political economy will make a difference.”9 2 h a r ry ’ s v i s i o n f o r t h e f u t u r e o f l a b o u r l aw

In these recent pieces, Harry acknowledges that he is by no means the first scholar to propose “the law of labour markets” as a reformed legal field to revive the fading discipline of labour law. He cites the  important work of British scholars Simon Deakin and Frank Wilkinson as an example of others who have made the same suggestion.10 Mention might also be made of Paul Davies and Mark Freedland, who first proposed a turn towards “the law of the labour market” in their early-1980s edition of the seminal British text, Kahn-Freund’s Labour and the Law.11 Harry’s own adoption of the label is somewhat unenthusiastic: There are other titles I could think of: European scholars talk of “social law” for example; or one might imagine a subject called “the law of economic power and subordination.” But to me, the “law of labour market regulation” does the job well enough.12

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What are we to make of this apparent lack of enthusiasm? Harry chooses words carefully, and his several references to “political economy,” rather than labour markets, as the object of study, and to “political outcomes” as well as “market outcomes,” are enlightening. In suggesting a significant degree of overlap, or even equivalence, between “the law of labour market regulation” and “social law,” or “the law of economic power and subordination,” Harry wishes to signal that his vision of a new field of study remains firmly grounded in the normative tradition of labour law. This tradition emphasizes how capitalism produces economic subordination through market structures and legal norms and rules, and states that a legal response to this subordination, one that pursues and legitimizes collective voice, is both necessary and desirable to protect “vulnerable economic actors against super-ordinate power.”13 Harry is not proposing, therefore, that labour law academics enroll en masse in economics classes, or start speaking like labour economists. Nor is he proposing that labour law reinvent itself as the study of how laws and other institutions affect the pursuit of optimal labour-market functioning. These empirical questions should be left primarily to labour economists and industrial-relations scholars. In Harry’s vision, labour law scholars should be missionaries, spreading the gospel of how law can, and should, respond to economic subordination by facilitating collective voice and the pursuit of social justice within capitalist market systems. Notwithstanding Harry’s choice of the label “the law of labour market regulation” as appropriate to demarcate the relevant field of  scholarship, then, and his reference to the work of Deakin and Wilkinson, his vision appears to differ in significant ways from that of the British “law of the labour market” school, led by Deakin, Wilkinson, Davies, and Freedland. In the work of the British scholars, the case is made not only for a realignment or extension of the boundaries of the field of study, but also for a rethinking of the key principles that are understood to shape or underpin the field.14 The “old” ideas of economic subordination and collectivization as a corrective thereto are rejected as no longer reflective of the policy priorities of governments and legislatures, and as no longer appropriate, therefore, as a framework for the analysis of current laws and regulations. Scholars are exhorted to turn their minds instead to the question of  whether particular laws or instances of regulation improve the

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capacity of labour markets to function so as to achieve such goals as the maximization of social inclusion and economic competitiveness. By doing so, the argument goes, scholars of labour law can hope to avoid the charge of making irrelevant or futile arguments in the face of more convincing economics-based lines of analysis. We believe Harry has something quite different in mind. His suggestion is that the boundaries of the field of scholarship be extend­ed or realigned to encompass the regulation of labour markets, and not only, any more, the rules governing individual- and collectiveemployment relations (understood as relations between a particular employer and employee, or a particular employer and trade union). However, the normative vision of “a law of labour market regulation” in Harry’s view – the values or principles according to which laws or regulations should be judged desirable or not – should remain, in essence, the same as it has always been: scholars should be concerned primarily with identifying instances of economic subordination and consequent social injustice.15 3 conclusion

Occupying a position at the forefront of labour law scholarship in Canada and beyond since the 1960s, Harry is among those who later feared the death of the subject. In his most recent work, he has proposed a way of framing an expanded or revised legal field, which he refers to as the “law of labour markets.” Despite the similarity of nomenclature, his argument differs from that of British scholars who advocate a reorientation of the subject to focus more squarely on the functioning of labour markets. Whereas the British scholars propose both a widening of the scope of the subject and a rethinking of its normative purpose – its defining aim or set of aims – Harry argues that the old normative vision remains appropriate. Scholars today should continue to concern themselves with questions of economic subordination and consequent social injustice, as did Laskin, KahnFreund, and Sinzheimer before them; but they may wish to cast the net further than previous generations did in their bid to find answers, examining not only types of working relationships other than employment, but also instances of economic subordination from outside the world of work. To date, Harry’s vision has been outlined in only quite broad terms. Questions remain. Is the notion of economic subordination sufficient

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to lend coherence to the envisioned field of legal scholarship? Can it do the gathering work of turning an apparently disparate collection of laws and regulations into a recognizably discrete legal discipline?16 Are labour law academics up to the task that Harry has assigned them, of expanding their expertise beyond the study of employment laws to a broader spectrum of legal problems relating to economic subordination, injustice, and resistance? More fundamentally, perhaps, in an age when national and supranational governments and legislatures seem, almost universally, to subscribe to the “common sense” notion that labour rights and labour-market institutions create barriers to optimal market-functioning and economic growth, how might scholars best argue for laws and measures designed to address economic subordination, without risking the charge that their arguments are outdated, harmful, or futile? These are difficult questions that illuminate some of the challenges confronted by labour law’s newest generation of scholars. In striving to meet them, and to ensure that we are not, after all, the “last” generation, we will do well to be guided by Harry’s thoughtful diagnosis and suggested route to recovery. N ot es   1 Harry W. Arthurs, “Charting the Boundaries of Labour Law: Innis Christie and the Search for an Integrated Law of Labour Market Regulation,” Dalhousie Law Journal 34 (2011): 1, at 2–3.   2 Harry W. Arthurs, “Labour Law after Labour,” in The Idea of Labour Law, ed. Brian Langille and Guy Davidov (Oxford, uk : Oxford University Press, 2011), 13.   3 Ibid., 17.   4 Harry W. Arthurs, “Labour Law and the Law of Economic Subordination and Resistance: A Counterfactual?” Osgoode Hall c lpe Research Paper No. 10 / 2012 (2012), 7.   5 Arthurs, “Charting the Boundaries of Labour Law.”   6 Ibid., 15.   7 Ibid., 14.   8 Ibid., 15–16.   9 Ibid., 16. 10 Ibid., 15n52, citing Simon Deakin and Frank Wilkinson, The Law of the Labour Market: Industrialization, Employment, and Legal Evolution (Oxford, u k : Oxford University Press, 2005).

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11 Paul Davies and Mark Freedland, Kahn-Freund’s Labour and the Law (London: Stevens and Sons, 1983). See Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford, uk : Oxford University Press, 2014). 12 Arthurs, “Charting the Boundaries of Labour Law,” 15. 13 Arthurs, “Labour Law and the Law of Economic Subordination,” 7. 14 See, further, Dukes, The Labour Constitution, especially ch. 5 and 8. 15 See Brian Langille, “Labour Law’s Theory of Justice,” in The Idea of Labour Law, ed. Langille and Davidov, 101; and Matthew W. Finkin, “The Death and Transfiguration of Labor Law,” Comparative Labor Law & Policy Journal 33 (2011): 171, on the distinction between the scope and normative aims of labour law. 16 Hugh Collins, “Labour Law as a Vocation?” Law Quarterly Review 105 (1989): 468–84.

21 The Daunting Challenge: Economic Justice for Subordinated Groups Katherine V.W. Stone Arjay and Frances Miller Distinguished Professor of Law u c la School of Law

1 t h e a r t h u r i a n l a b o u r l aw v i s i o n

Harry Arthurs has been an inspiring mentor, esteemed collaborator, and good friend to me for over twenty years. And I am not alone. Harry is a much beloved and immensely influential member of the labour law academy. He has taught many, possibly most, of the labour lawyers, arbitrators, and judges in Canada today. His mentorship as  well as his writings have inspired and shaped dozens of labour law  academics in Canada, the United States, the United Kingdom, and around the world. For over sixty years, he has built the organizations and infrastructure that define the labour law field. I first met Harry in Canada in the early 1990s, when I was invited to speak at a conference held to update the Canadian Labour Law Casebook – a project of the Canadian Labour Law Group of which Harry was an early and important member. At that meeting, Harry and I discovered that we shared an interest in and perspective on international and comparative labour law. In the following decades, we served as co-panelists at numerous conferences, designed several research initiatives, co-authored several papers, and organized many events together. In 2008, we embarked on a comparative project that looked at the impact of flexible work practices on domestic labour law regimes. To this end, we secured funding and organized a conference that brought together scholars from ten countries representing

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eight different disciplines. Our efforts resulted in a co-edited volume published by the Russell Sage Foundation Press in 2014. Currently, Harry and I are exploring a possible new comparative project – this time about the relationship between trade unions and politics. These collaborations with Harry have been the most rewarding aspect of my professional career. The many contributors to this volume attest to the fact that Harry is an inspiration to all of us in the field of labour law. His writings and lectures have framed the issues and set our research agendas. He has provided new perspectives on well-trodden ground and generated new ideas in uncharted territory. He always presents his ideas clearly, using lively examples and elegant metaphors. And his work is always deeply infused with a vision of social justice. One feature of Harry’s work that has often been noted is his pessimism. Harry delivers a frank assessment of the state of the world. He forces us to face uncomfortable realities and he reminds us of facts that we might want to ignore. Yet, the paradox is that, despite his pessimism, Harry gives us the tools to imagine a more humane and just society. I do not know whether he believes such a society is attainable or whether he believes it is a hopeless aspiration, but, by articulating his vision, Harry inspires the rest of us to strive for it. Harry has written so much and contributed so many ideas that it would be impossible to characterize his impact on the field in a short essay such as this. However, I want to focus on one recent contribution, his 2013 article, “Labour Law as the Law of Economic Subor­ dination and Resistance: A Thought Experiment,”1 because it presents an exciting new direction for the field. 2 t h e l aw o f s u b o r d i n at i o n a n d r e s i s ta n c e

In classic Arthurian style, the piece begins with a gloomy description of the decline in labour and the atrophy of the field of labour relations. Unions are declining, workers’ share of g d p is shrinking, steady jobs are disappearing, and state support for a social safety net is vanishing. After thoroughly depressing the reader, Harry presents a framework that makes it possible to think afresh about the seemingly intractable problems that he has presented. His argument is as follows. Labour law, as a field of academic coherence, policy relevance, or social practice, has atrophied beyond repair. As Harry explains:

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[Labor law emerged around World War II as] an attempt to protect the rights, advance the interests, and regulate the conduct of “labor,” of “workers” who were assigned that collective identifier as members of a class or movement, as bearers of a shared cultural identity, or as a factor of production. But however des­ cribed, whether in the language of political economy or sociology or scientific management, the terms “labor” and “worker” are being emptied of meaning.2 He goes on to elaborate: “[L]abor” as a way of describing a social class and its cultural practices, a political and industrial movement, a distinct domain of public policy, and of legal theory and practice is disappearing from everyday usage. This is not because workers no longer need whatever power or protection labor law gave them. They do need it, and arguably more than ever.3 There are many reasons for this decline, but the primary one, according to Harry, is the “diminishing salience of ‘labor.’”4 Neither policy-makers, corporate managers, nor academics see “labour” as a meaningful category. Indeed, even workers no longer see themselves as a distinctive and coherent group. The type of solidarity that formed the basis for the mass labour mobilizations of the twentieth century and that laid the groundwork for twentieth-century labour laws has dissipated. Today, working people define themselves not as workers, but in terms of other categories that are more meaningful to them, categories based upon their gender, race, ethnicity, sexual orientation, religion, national origin, sports team affiliations, consumer preferences, social media use, and so on. As a result of the disappearance of “labour” as a meaningful category, labour law has become fragmented, incoherent, and arbitrary. Many workers are not covered by this law at all because they do not fit the mould of a traditional worker. Those who are covered do not see trade unions as important sources of personal betterment or meaningful community. Labour unions are declining in numbers and power, and labour parties are becoming increasingly divorced from their working-class base. Strike activity has almost disappeared, as have other “signifiers” of working-class solidarity such as workingclass bars and Labour Day parades.5 The upshot, Harry opines, is

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that “if workers do not perceive that they have collective interests, if they are not committed to a collective identity and collective action, there is not much collective labor law can do to improve their lot.”6 Thus, he drives a nail into the coffin of the dying field. 3 the originality of arthurs’s thought experiment

After thoroughly decrying the state of the labour law field and denying hope for its revival, Harry invites us to reimagine labour law by means of a “thought experiment.” He asks us to imagine that, during the 1920s and 1930s, the architects of the field of labour law had created a “law of economic subordination and resistance” instead. This body of law would have spoken not only to workers who were attempting to gain the right to bargain collectively, but also to farmers who were trying to form co-operatives to counter the abuses exercised by the railroads and banks, to homeowners who were attempting to fight foreclosures, and to tenants attempting to organize against evictions and rent gouging. Harry imagines that a body of law might have developed that protected all these groups against “the arbitrary exercise of private economic power.”7 If labour law had taken this form, he opines, it might have been possible to expand its protection to other groups that later organized to claim rights, such as selfemployed truck drivers and cab drivers, consumers, welfare recipients, and minority shareholders. In this way, the law could have created alliances, rather than rifts, between economically subordinated groups, thus engendering solidarity across multiple domains. As he writes: Instead of relying on special pleading to the effect that the unique character of employment relations requires, in effect, a semi-autonomous legal subsystem, labor law might have presented itself as part of a broad array of differentiated but related subsystems that collectively challenged core conceptions of the law of industrial and postindustrial capitalism. This might arguably have given labor law a stronger claim to legitimacy, made its claims seem less anomalous, and enriched it with insights from adjacent domains of legal resistance.8 After laying out a promising vision of a path not (yet) taken, Harry returns to his pessimism to explain why his vision did not, and could

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not have, come to pass. He recounts some efforts in its direction that were attempted – such as the National Industrial Recovery Act in the 1930s – but shows that all such efforts ultimately failed. He explains that the failure may have been inevitable because the different groups he named are too different, the mechanisms creating each group’s subordination too divergent, and the groups’ interests too distinct to give rise to a unified strategy or solution. Nonetheless, Harry claims, the efforts of the past remind us that there were moments in which labour law was briefly “embedded in a larger and more ambitious strategy to protect vulnerable individuals from superordinate corporate power.”9 Therefore, also in Arthurian style, the piece ends on a cautionary note, retreating from any sense of hopefulness that he has created, but leaving the door of possibilities open, ever so slightly, for others to explore. 4 s p o n ta n e o u s c u lt u r e s o f r e s i s ta n c e

The essay leaves us to wonder, can such a strategy be revived? Can labour law be reimagined in such a bold and sweeping way? Is there an incipient “narrative of resistance” emerging in the Occupy Movements in the United States, the Indignados movement in Spain, the 99%ers in Vancouver, as well as the living wage coalitions and global activist networks emerging all over, that might cohere in creating a new kind of law that would address economic subordination and empower resistance? The piece is bold and visionary. The proposal is hopeful, despite arriving wrapped in a thick packing of pessimism. Harry not only calls for taking the field of labour law in a new direction, he also lays out a road map for doing so. Here, I want to consider what this approach would mean and ask whether it is a good path to take. The idea of reframing labour law as the law of economic subordination is not entirely new in Harry’s work. He explored the idea, albeit under a somewhat different name, as early as 1965. Then he wrote about the problems of small independent contractors who are not technically “workers” but are dependent upon a single powerful entity for their survival.10 He introduced the term “dependent contractors” to characterize disparate groups of workers, including taxi drivers, fishermen, truck drivers, chicken peddlers, and tobacco farmers.11 All of these are individual sellers of their labour who have tried to band together both to counter and to resist the oppressive exercise of economic power by those who purchase their services and / or control their economic well-being. The legal issue that the piece addresses

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is whether such groups will be able to organize and deploy their power collectively. Harry asks, To what groups should this device be permitted? What tactics may legitimately be employed in wielding group power? What rights do non-members of the group have to refrain from joining, and what rights do members have to continue to belong? What assurances exist that the balance of power will not become overweighted in the other direction, or that the public will ultimately be better served?12 These are issues that would be familiar to anyone who has studied labour law – they are the very issues that the National Labor Relations Act and its Canadian analogues address. In writing about the problems of dependent contractors, Harry identified a tension between the individualist conception of the market embodied in the antitrust laws and the collectivist vision of labour relations protected by the labour laws. The tension is usually rendered invisible because it is submerged in the distinction between the product market, where combination is generally proscribed, and the labour market, where combination is generally permitted. However, as he says, “[t]he dependent contractor inhabits the no-man’s-land between these policies.”13 And thus he asks, “To what extent should dependent contractors be governed by the regime of competition, to what extent by the regime of collective action?”14 5 the persistent but elusive quest for collective rights

Harry’s insight that there is a tension between the rationality of the market and the rationality of labour law is perceptive and important. The ideal of free-market competition abhors collectivism, unless it takes a legitimated form of collective capital, such as a corporation, a partnership, or a hedge fund. It took a century of bloody struggle for workers to attain collective personality and collective rights. They did so by articulating a legitimating counter-narrative, one that was not necessarily anti-capitalistic, but that argued that labour is not a commodity and should therefore be removed from the domain of pure market competition. Harry’s dependent contractor article suggests that taxi drivers, fishermen, and independent truckers should be part of that same

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counter-narrative.15 He urges us to expand the core notions of labour law to include these and other similar relationships characterized by the exercise of unequal power between private persons so that they, too, can resist oppression and form a countervailing power. Just as workers’ right to collective action came to be protected by labour law, Harry writes, “the use of countervailing power by groups other than employees may be desirable.”16 Harry’s recent “Labour Law as Subordination” piece advances this same theme and expands the argument to include groups that are not even arguably employees. He advocates that workers make common cause with tenants, consumers, homeowners, franchisees, and others who are subject to the exercise of economic power by powerful, organized economic actors. He proposes that labour law adopt, as a foundational principle, the proposition that [t]he subordination of workers in the employment relation is but one representative example of the experience of many groups under capitalism, all of which should have the basic right to be protected from the arbitrary exercise of private economic power.17 Harry’s conception of an expanded form of labour law – a law of economic subordination – is, at the same time, appealing and uncomfortably incomplete. It is unclear how it could be implemented, or what, in practice, it means. In the first place, we would have to know how to identify “subordination.” Harry claims that protection should be granted to all groups that suffer from “the arbitrary exercise of private economic power.” But how are those instances to be identified? Presumably there are some cases in which economic power is exercised in a non-arbitrary, i.e., legitimate, fashion. It is not necessarily arbitrary for an employer to refuse to hire someone who is not qualified for a job opening, unless they are doing so for a discriminatory or other nefarious reason. A bank should be able to get repaid when it makes a loan, at least if the loan was on fair terms. A business should be able to deny service to a customer who refuses to pay a reasonable price for its goods or services. A landlord should be able to evict a tenant who does not pay rent, so long as the landlord provided a habitable dwelling at a fair price. A worker should be able to quit a job, however indispensable he or she might be to the firm. In all these cases, we need a normative theory to define the difference between an arbitrary and abusive exercise of power and a legitimate exercise of power.

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6 n o r m at i v e t h e o ry a n d t h e o l d e r i d e a of praxis

Where will this normative theory come from? Harry does not tell us. Indeed, he barely addresses the problem. But he is too sophisticated to have missed it. Thus, I believe that the piece is not merely a thought experiment inviting us to expand our vision of labour law; it is also an invitation – indeed, an exhortation – for us to consider the question of the boundary between legitimate and illegitimate uses of economic power. His argument demonstrates the imperative of doing so. And to address this question, we need to think deeply about what kind of economic and political system we want to have. We need to articulate our values and our notion of human flourishing. Only then can we distinguish between the legitimate and illegitimate exercise of power in the economic realm. In the “Law of Economic Subordination” essay, Harry has taken us far beyond the current problems of labour law. He is calling for a new progressive politics, one that is not based upon the uniqueness of labour as a category, but that rather requires a robust vision of economic justice applicable to all subordinated groups. This is a daunting challenge and a heady opportunity. I look forward to reading Harry’s next iteration on this theme. I am confident that it will be pessimistic, but also that it will contain the germ of an answer. N ot es   1 Harry W. Arthur, “Labour Law as the Law of Economic Subordination and Resistance: A Thought Experiment,” Comparative Labor Law and Policy Journal 34 (2013): 585.   2 Ibid., 589.   3 Ibid., 590.   4 Ibid., 589.   5 Ibid., 591.  6 Ibid.   7 Ibid., 593–4.   8 Ibid., 596.   9 Ibid., 600. 10 Harry W. Arthurs, “The Dependent Contractor: A Study of the Legal Problems of Countervailing Power,” University of Toronto Law Journal 16 (1965): 89.

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11 Harry attributes the term “dependent contractor” to Alex Adlercreutz in ch. 3 of Folke Schmidt, The Law of Labour Relations in Sweden (Cambridge, m a: Harvard University Press, 1962). However, Harry’s “The Dependent Contractor” article propelled the term, and the concept, into the larger labour law scholarly and policy community. 12 Arthurs, “The Dependent Contractor,” 114. 13 Ibid., 90. 14 Ibid., 113. 15 Ibid., 103–4. 16 Ibid., 113–14. 17 Arthurs, “Law of Economic Subordination,” 593–4.

pa r t v i i

Milestones, Imperfect Foresight, and Formative Beginnings: The Making of a Legal Realist

22 Harry Arthurs: The Law Student Years Martin Friedland Toronto

1 introduction

It is likely that no other contributor to this volume has known Harry for as long as I have. We have been good friends for sixty years. If anyone should know what made him the brilliant, iconoclastic, critical scholar that we are honouring in this volume, I should. I can, however, offer no definitive conclusions – only speculation on what some of the early influences may have been. I did not know Harry until after he arrived as an undergraduate at University College at the University of Toronto in September 1952. I was then in second year and probably first met him when he was a pledge at Sigma Alpha Mu, a Jewish fraternity that I had joined the previous year. I will leave it to Harry to tell us in his memoirs whether the fraternity played a significant role in his life. I know that he made some good friends through the fraternity, such as Alan Borovoy, but I suspect that Harry will play down the importance of the fraternity in his later career. I doubt if he ever gave the secret handshake to his mentor Bora Laskin, a fraternity brother from an earlier generation. The preparation of this volume is meant to be a secret from Harry, and so I am writing this piece without interviewing the subject. I also did not look at the 33.6 metres of documents he donated to the archives at York University, which cannot be examined without his consent.1 The earliest document in that collection is apparently from 1957 – probably his labour law class notes – and so the archival records would probably not shed much light on his early years. So

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most of what I have to say is based upon casual conversations with Harry over the years, some googling, and much speculation. There are also archival records concerning Harry’s maternal family that he deposited in the Ontario Jewish Archives in 2006, documents that had belonged to his late mother.2 I know that Harry’s maternal grandparents had a strong influence on Harry. His grandmother, Dorothy Dworkin, was a remarkable woman, who, in the early 1920s, helped establish the Mount Sinai Hospital, then on Yorkville Street, and was the first president of the Mount Sinai women’s auxiliary. In her early years, she was a nurse and a midwife. She later established a travel agency that brought hundreds of Jewish immigrants from Eastern Europe to Canada. In 2009, she was officially designated by the federal government as a “Person of National Historic Significance.” She died in 1976, at the age of eighty-six. Harry was her only grandson.3 Harry did not know his grandfather, Henry Dworkin, who died in an automobile accident in 1928, but would have known of his reputation as a strong supporter of the labour movement. Henry Dworkin and a colleague – although both were businessmen – founded the Labor Lyceum on Spadina Avenue. A plaque was put up in 2013 by Heritage Toronto celebrating the Labor Lyceum, which states, in part: Established in 1913 by Henry Dworkin and Sam Easser, the Labor Lyceum Association sought to advance the interests of the city’s Jewish trade union movement.4 The Ontario Jewish Archives states on its website that, at the unveiling of the plaque, Guest speaker Harry Arthurs, former dean of Osgoode Hall Law School, labour historian, and grandson of Henry Dworkin, founder of the Labor Lyceum, spoke eloquently about the role his grandfather, an enterprising businessman, played in the community.5 So it is no surprise that Harry was later interested in labour law. Harry’s father, Leon Arthurs, was a self-taught patent attorney who had left school at the age of fourteen. He was never a lawyer, but was instrumental in founding, in 1947, the Lord Reading Law Club, a society of Jewish lawyers in Toronto. Jewish lawyers were not, at

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that time, admitted as members of the Lawyers Club of Toronto. (Lord Reading, a Jew, had been Chief Justice of England around the time of the Great War.) Leon Arthurs kept the organization going for many years as its executive director.6 So, once again, Harry had a strong role model within his family. His mother, Honey – a lovely, refined lady – graduated from the University of Toronto in 1935, the year that Harry was born. His late sister, Cindy, was born a number of years later. Like most women with children in those years, Honey Arthurs was mainly a stay-at-home mother.7 I do not know which professors in Harry’s undergraduate courses had an influence on him. We’ll learn this from Harry’s memoirs. I can, however, speak about his law-school days. I probably first learned that Harry was going to attend the University of Toronto Law School when we both showed up in September 1955 at the law school in Cumberland House – then called Baldwin House – on the east side of St George Street, close to College Street. Harry has briefly described coming to law school: “I arrived at the Faculty of Law of the Uni­ versity of Toronto in 1955, a student with a middling education, good grades, left-ish genes and a determination – formed at age four, unexamined thereafter – to become a lawyer.”8 2 u n i v e r s i t y o f to r o n to l aw s c h o o l

The University of Toronto Law School was a first-class institution, with an outstanding faculty and excellent students. There had been an undergraduate programme in law for several decades in the 1930s and 1940s, but, in 1949, a professional school was established. Legal icons Caesar Wright, Bora Laskin, and John Willis left Osgoode Hall Law School and came to the University of Toronto.9 The problem was that the Law Society of Upper Canada did not recognize the University of Toronto Law School. Osgoode Hall Law School was the only recognized school. Graduates of other schools had to take their final year at Osgoode, which therefore added an extra year to their legal education. The University of Toronto Law School therefore tended to attract very dedicated students who, for the most part, were interested in understanding the law as an intellectual discipline. This resulted in a very good student body. Our class, the class of 1958, was composed of exceptional students who were interested in legal ideas. My class notes are sprinkled with comments by our fellow students. About thirty students in our year

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graduated. Many had excellent careers. John Sopinka became a top counsel and a member of the Supreme Court of Canada; several others became judges; one became a leading criminal lawyer; three of us became academics; Jerry Grafstein became a senator; almost all members of our class had successful practices. The same was true of those in the years before and after us. As it turned out, we were rewarded for our dedication to the law because in 1957, in our second year, the school was recognized by the Law Society and we did not have to spend the hated last year at Osgoode.10 Instead, we formed the first class of the new Bar Admission Course. As Harry later wrote, we were students “during one of the most dramatic episodes in the history of Canadian legal education, at a crucial juncture in the debate over whether law would become a ‘normal’ university discipline, free ... to transform ... our understanding of law’s intellectual premises and social effects and, ultimately, the practice, administration and content of law.”11 So, the intellectual strength of the class had a strong influence on all of us. Four of us formed a small study group at the beginning of first year: Harry, Harvey Bliss, Jerry Grafstein, and me. We met every Sunday morning to discuss one of the first-year subjects and continued the weekly meetings until the end of our third year. We rotated who would lead the discussion, which took place in the homes of the members of the group. The mothers would prepare lunches for us. Our favourite locale was Harvey Bliss’s house, because his mother was an excellent cook. Harry’s mother was not far behind. Those discussions were stimulating and gave us a grasp of the law that we might not have had if we had worked completely on our own. The faculty of about ten professors was remarkably able – the best faculty in Canada at the time. The majority had done their graduate work in the United States: Yale, Columbia, and, mostly, Harvard. Caesar Wright had completed his doctorate at Harvard – in one year. Other Harvard students included Bora Laskin (whom I will have much to say about later), Albert Abel, Jim Milner, and David Kilgour. One professor, Eugene Labrie, had a doctorate from the University of Toronto, and another, Abe Weston, an Australian, had done postgraduate work at Oxford. After first year, the faculty moved to Glendon College – many years later, the site of the dinner I attended after Harry’s installation as president of York University. The move to Glendon had the effect of trapping the faculty in a beautiful location, several miles north of the

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University of Toronto. There was only one lunchroom and we often sat with faculty members. I don’t know whether they actually happened, but I seem to recall walks down into the Don Valley Ravine, talking law with Laskin. It may be that Harry’s recollection of life at Glendon was not as idyllic as mine. Moreover, as Harry recently reminded us, the faculty was somewhat less productive than we thought it was at the time: “With few exceptions,” Harry wrote, “neither [our teachers], nor their predecessors, nor other Canadian legal academics, produced much in the way of empirical studies, theoretical work, scholarly monographs or magisterial treatises.”12 Before I turn to Laskin, I have to mention Albert Abel. We took a course in legal writing from him in our first year, Abel’s first year of teaching at the University of Toronto. We were required to do Harvard Law Review–style case comments and other assignments, which Abel went over carefully. I believe this had a profound effect on all of us in terms of careful scholarship and clear writing in our later careers. Students published excellent work in the student-run Faculty of Law Review, which Harry and I co-edited in our third year. I would like to think that I had an influence on Harry’s career in several ways. We were not just friends, but competitors, at law school, as deans of the two Toronto law schools, and as scholars. As I state in my memoirs: “There is no question that there was academic rivalry between Harry and me throughout our careers. The rivalry probably helped both of us accomplish more than we might otherwise have done.”13 There is, I think, another way in which I may have played a role in Harry’s career. I have always been fairly adventurous, particularly in my younger years. Throughout university, I did a lot of travelling, including hitchhiking through Canada and the United States, physically touching all but two states. I would drive a drive-away car from Detroit to wherever the car was to be delivered and hitchhike back. Harry wanted to join me on a two-week trip that I was planning to take just before our third year of law school. In my memoirs,14 I devote several pages to this trip – obviously important in my own life – describing the vehicle that we were given, a new pick-up truck with a standard gear-shift. Harry had never driven a standard gear-shift before, but he learned quickly, stripping the gears at the expense of the eventual owner of the truck. On the way down, we stopped at the University of Louisville’s Brandeis School of Law, which houses the papers of Louis Brandeis, one of our heroes in law school. This was

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the first time that Harry or I had ever looked through archival papers. Did it have an effect on our future interest in legal history? After dropping the car off in Texas, we hitchhiked to Monterrey and took a bus back to the border – or vice versa. Harry will remember. In retrospect, hitchhiking on deserted mountainous Mexican roads was a rather stupid thing to do. Then, on the trip back to Toronto, we heard about a crisis in Little Rock, Arkansas, where the federal government had sent in units of the federal army to ensure that black students would be admitted to the Little Rock Central High School. Governor Orval Faubus was resisting integration. Naturally, we went out of our way to go to Little Rock to be part of the action. We hooked up with a United Press reporter who used us as interviewees to describe what was taking place. Who knows whether that trip also played a role in Harry’s future travels and intellectual adventures? 3 bora laskin

There seems little doubt that the person who had the most influence on shaping Harry’s career was Bora Laskin. Harry had known Laskin through both his father and his mother, who was Laskin’s contemporary as an undergraduate at the University of Toronto in the early 1930s. Bora played a significant role in many of our careers. He helped each of the four members of our small study group by giving advice and assisting us to find articling positions. All four of us articled – with Jewish law firms. Harry admired Laskin. “By the mid-1950s,” Harry later wrote, “Laskin enjoyed unwarranted notoriety as an intellectual and political radical, which rather endeared him to me, and a more appropriate reputation as a pre-eminent architect of Canadian labour law through his contributions as a commentator, critic, pedagogue, policy advisor, and arbitrator.”15 I can picture today’s students saying much the same about Harry. By the end of third year, in his own words, Harry had become an “unsophisticated legal realist.”16 Harry identifies Laskin as his role model. In a relatively recent paper, he comments on a book that strongly influenced him, Frank­ furter and Greene’s 1930 study The Labor Injunction, which Laskin had mentioned in his labour law class. This book, Harry notes, was “starred and underlined in red” in his class notes.17 I can still picture

Harry Arthurs: The Law Student Years 333

Harry’s unique style of note-taking – which we all wanted to borrow if we missed a class – with different colours, underlining, asterisks, and other designations. The book was significant, not only because of  its empirical examination of the use of labour injunctions, but because of Felix Frankfurter, then a professor at Harvard, later a Supreme Court justice. Harry writes: “Frankfurter – its lead author – was a Jew and a progressive academic, just like my teacher and role model, Laskin.”18 Laskin’s most significant teacher at Harvard had been Frankfurter, a follower of Oliver Wendell Holmes. As I now look back on our law school days, we were all Holmesians, although most of us would not, perhaps, have known it at the time. That was the dominant philo­ sophy at the University of Toronto law school in those years. Our professors – particularly Laskin – spouted Holmes’s well-known statements from his scholarly writing, such as: “the felt necessities of the time”;19 “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”;20 “the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics”;21 and “the life  of the law has not been logic: it has been experience.”22 And we were familiar with quotations from some of Holmes’s judgments, such as: “The common law is not a brooding omnipresence in the sky”;23 “judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions”;24 and “the best test of truth is the power of thought to get itself accepted in the competition of the market.”25 In Laskin’s published articles in the 1930s arising out of his Harvard studies, he frequently cited Holmes and his followers, particularly Frankfurter and Cardozo.26 In a 1938 article, Laskin cites several of Holmes’s statements, such as: courts “limit their activities to molecular as contrasted with molar motions”;27 “the life of the law has not been been logic; it has been experience”;28 and “the very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned.”29 Laskin’s approach was consistent with the philosophy of Holmes and his followers, such as Harvard law dean Roscoe Pound and US Supreme Court justices Benjamin Cardozo, Louis Brandeis, and Felix Frankfurter. It was often labelled “sociological jurisprudence.”30

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Caesar Wright, who studied at Harvard under Pound, followed this philosophy, and he was certainly a major force in Laskin’s life. It became the philosophy of Dean W.P.M. Kennedy, the first dean of the law school where Laskin had studied law as an undergraduate.31 Laskin later wrote that Kennedy “introduced us to the riches of American legal scholarship, to Holmes and Brandeis and Cardozo, to Pound and Frankfurter ... and to so many others.”32 Kennedy and Wright rejected the British positivists. Kennedy had written, shortly before Laskin entered law school, that law should “serve social ends” and legislation should be preceded by “a carefully sifted examination of social facts.”33 Holmes was a pragmatist; or, as Cheryl Misak, a philosopher who has studied the pragmatists, has stated, Holmes was at least a “fellow traveller” of the pragmatists.34 He was one of the founding members of the Metaphysical Club at Harvard, out of which the pragmatists emerged. These included such important names as Charles Peirce, William James, and John Dewey. “Law, for Holmes,” Misak writes, “grows in a fallible way, where doubt, conflict, and disputes about what the law is are resolved under the force of experience.”35 Roscoe Pound put it this way in 1908: The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law; for the adjustment of prin­ ciples and doctrines to the human conditions they are to govern rather than to assumed first principles; for putting the human factor in the central place and relegating logic to its true position as an instrument.36 This was Laskin’s philosophy, shared by most of our other teachers at the University of Toronto law school. Jim Milner – then teaching at Dalhousie – for example, writing in 1948 in the Canadian Bar Review, wrote about the importance of sociological jurisprudence: The increasing awareness of the inadequacy of the logical method to explain judicial phenomena has led to a more realistic examination of traditionally non-legal factors: the social and economic background of the law to which law is or should be subservient.37 Harry did not article immediately after finishing law school. Instead – no doubt with the advice and assistance of Bora Laskin – he

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went to Harvard Law School to do an L L M in labour law with Archibald Cox, who later became solicitor general and then the special prosecutor in the Watergate prosecutions, and Derek Bok, later the president of Harvard. Harry’s mini-thesis, “Tort Liability for Strikes in Canada: Some Problems of Judicial Workmanship,” was published as a fifty-sevenpage article in the Canadian Bar Review in 1960 – Harry’s first published legal piece.38 There are several references to Holmes in this article, many references to Archibald Cox, and a large number to Kennedy and Finkelman’s 1930 book The Right to Trade.39 Not surprisingly, the person cited most frequently is Bora Laskin, who is mentioned nine times in the text and sixteen times in footnotes. Harry articled with Sydney Robins, who was also a graduate of Kennedy’s law school (a B A and an LL B) and of Osgoode Hall Law School, and had done an L L M at Harvard. For several decades, Robins taught torts as a special lecturer at Osgoode. Harry has also referred to him as “my mentor.”40 Robins was recognized as an outstanding labour lawyer on the labour side, was a respected treasurer of the Law Society of Upper Canada, and was highly regarded as a judge of the Ontario Court of Appeal. I do not know his philosophy of law, but would be surprised if he was not a Holmesian pragmatist. I had a delightful lunch with him last year, a month before he died at age ninety. We discussed his knowledge of and affection for W.P.M. Kennedy. If I had known that I would be preparing this chapter on Harry, I would certainly have raised these more philosophical issues with him. There are others with whom Harry was close in those early years. Alan Borovoy, for example, the general counsel to the Canadian Civil Liberties Association, worked closely with Harry after the organization was reconstituted in the mid-1960s.41 And Harry was reasonably close with Jacob Finkelman, the chair of the Ontario Labour Relations Board, who had been Laskin’s labour law teacher in Kennedy’s programme.42 But I am not going to go further in this exploration of the early influences on Harry. I’ll leave that task to Harry. 4 conclusion

I look forward to reading the chapters in this collection to see how Harry’s philosophy developed over the years, leading to his current interest in pluralism. In a relatively recent article, he stated that his

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thinking on the role of the courts in fields involving social conflict or controversy “took me in the direction of legal pluralism, a bundle of socio-legal theories which suggest that law can not only exist without courts but without the state as well.”43 And the report by the committee he chaired in 1983, Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada, concluded that Canada “must begin to take all types of legal research – especially fundamental research ‘on’ law – much more seriously.”44 “Fundamental research, as we use the term,” the report states, “proceeds from the intellectual perspective that law is problematic rather than certain, that its causes and effects, rather than its formal rules, invite scrutiny.”45 The examples of fundamental research, however, are restricted to three empirical inquiries: bail procedures, distribution of losses from industrial and traffic accidents, and – naturally – the practice of courts issuing labour injunctions. This is important work that should be encouraged, but it is hardly earth-shattering or radical. One final question may interest the reader. What happened to Holmesian philosophy? It seems that few people in Canadian law schools discuss Holmes today. A survey published in 1995 of law schools in England, Australia, and Canada showed that Holmes was not even on the list of the forty or so legal philosophers mentioned by those responding to the survey, although, to be fair, Pound was.46 This is not the place for a detailed analysis of why Holmes has been neglected, but I will mention two considerations, in particular. The first is the academic and judicial reaction to the much-criticized 1960 decision of the House of Lords in D.P.P. v Smith,47 in which the Lords adopted Holmes’s view expressed in The Common Law that there should be an objective test for the mental element for crime, even in the case of murder. Another important reason for his neglect is that Holmes – in my view wrongly – was considered by many as a legal positivist, whose views could lead to fascism. One article published in 1945, for example, was entitled “Hobbes, Holmes, and Hitler.”48 Lon Fuller wrote in 1958: During the last half century in this country no issue of legal philosophy has caused more spilling of ink and adrenalin than the assertion that there are “totalitarian” implications in the views of Oliver Wendell Holmes.49

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The attack on Holmes has continued in more recent scholarship, such as by my colleague David Dyzenhaus, who compares Holmes with the Nazi sympathizer Carl Schmitt in his essay “Holmes and Carl Schmitt: An Unlikely Pair.”50 My reading of Holmes shows, however, that Holmes did not want a complete separation of law and morals, but rather, as one recent biographer states,51 Holmes “replaces the question of whether law is separate from morals by the inquiry of how the two may be understood to interact.” In his important lecture “The Path of the Law,” published in the Harvard Law Review in 1897,52 Holmes states that morality plays a role in developing the law: “The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.” It is possible that Holmes may have a resurrection. Justice Richard Posner concluded his foreword to a collection of papers celebrating the centennial of “The Path of the Law” in 1997 by stating that, after reflection, “we see what a previous generation saw – that Holmes was the greatest legal thinker and greatest judge in our history.”53 He also points out that it is hard to classify Holmes, stating that “there is unending debate over whether Holmes is better described as a formalist or a realist, a pragmatist or a logical positivist, a liberal or a reactionary, a Puritan or a Social Darwinist.”54 After reading the Holmes-Pollock letters, Dean W.P.M. Kennedy concluded that Holmes does not belong in “any clear-cut school of legal thought.”55 Is it possible that we might say the same about Harry W. Arthurs? If not, it will be interesting to learn what labels the contributors to this volume attach to Harry. No te s   1 Clara Thomas Archives, York University, inventory of the Harry W. Arthurs accession.   2 Ontario Jewish Archives, Harry Arthurs accession.   3 See Ontario Jewish Archives, Dworkin Family; Bill Gladstone, “Toronto’s Mount Sinai Had Humble Beginnings as a Dispensary,” Canadian Jewish News (29 January 2015); Wikipedia, “Dorothy Dworkin”: “A plaque in front of the former hospital building on Yorkville Street, unveiled in 2010, mentions her involvement in founding the hospital.”   4 “Labor Lyceum,” http://torontoplaques.com, last accessed 24 July 2016; http://heritagetoronto.org, last accessed 24 July 2016.

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  5 Ontario Jewish Archives blog, “Labor Lyceum Plaquing Event” (Wednesday 29 May 2013), http://www.ontariojewisharchives.org/Blog/ Labor-Lyceum-Heritage-Plaquing-Event, last accessed 24 July 2016.  6 Ontario Lawyers Gazette 12, no. 3 (2008): 27. A Montreal organization, the Lord Reading Law Society, was established the following year and is still in existence. See Irwin Rudick, “President’s Message,” Lord Reading Law Society Newsletter (January 2010), http://lordreading.org/en/ newsletters/2010/01, last accessed 24 July 2016.   7 For further information on Harry’s family, see the Ontario Jewish Archives – Honey Dworkin; and the Ontario Jewish Archives – Harry Arthurs.   8 Harry W. Arthurs, “Woe unto You, Judges: Or How Reading Frankfurter and Greene, The Labor Injunction, Ruined Me as a Labour Lawyer and Made Me as an Academic,” Journal of Law and Society 29 (2002): 657, at 657.   9 See Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers and Legal Education in Ontario 1923–1957 (Toronto: University of Toronto Press, 1987); Martin Friedland, The University of Toronto: A History (Toronto: University of Toronto Press, 2002), 438–42. 10 Arthurs, “Woe unto You,” 658. 11 Ibid., 659. 12 Ibid. 13 Martin Friedland, My Life in Crime and Other Academic Adventures (Toronto: University of Toronto Press, 2007), 38. 14 Ibid., 12–14. 15 Arthurs, “Woe unto You,” 660. 16 Ibid. 17 Ibid., 661. 18 Ibid., 662–3. 19 Oliver Wendell Holmes, The Common Law (Boston, ma : Little Brown, 1881), 1. 20 Oliver Wendell Holmes, “The Path of the Law,” Harvard Law Review 10 (1897): 457, at 461. 21 Ibid., 469. 22 Holmes, The Common Law, 1. 23 Southern Pacific Co. v Jensen (1917), 244 U.S. 205, at 222. 24 Ibid., 221. 25 Abrams v U.S. (1919), 250 U.S. 616, at 630. 26 See Bora Laskin, “The Labour Injunction in Canada: A Caveat,” Canadian Bar Review 15 (1937): 270; Laskin, “The Protection of Interest by Statute

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and the Problem of ‘Contracting Out,’” Canadian Bar Review 16 (1938): 669. 27 Southern Pacific Co. v Jensen (1917), 244 U.S. 2015, at 222. 28 Holmes, The Common Law, 1. 29 Ibid., 35. 30 See, generally, Denise Réaume, “The Judicial Philosophy of Bora Laskin,” University of Toronto Law Journal 35 (1985): 438; and Philip Girard, Bora Laskin: Bringing Law to Life (Toronto: University of Toronto Press, 2005), particularly ch. 2 (“Law School”) and 4 (“Harvard”). 31 Girard, Bora Laskin, 50–1. 32 Bora Laskin, “Cecil A. Wright: A Personal Memoir,” University of Toronto Law Journal 33 (1983): 148, at 150; see also R.C.B. Risk, “The Many Minds of W.P.M. Kennedy,” University of Toronto Law Journal 48 (1998): 353, at 365–70; and Martin Friedland’s introduction, “The Enigmatic W.P.M. Kennedy,” for the 2014 republication of W.P.M. Kennedy’s 1922 classic, The Constitution of Canada. 33 Girard, Bora Laskin, 50–1; Risk, “The Many Minds of W.P.M. Kennedy,” 366–7. 34 Cheryl Misak, The American Pragmatists (New York: Oxford University Press, 2013), 77–81. 35 Ibid., 78. 36 Roscoe Pound, “Mechanical Jurisprudence,” Columbia Law Review 8 (1908): 605, at 609–10; Girard, Bora Laskin, 84. 37 J.B. Milner, “The Law of Contract: 1923–1947,” Canadian Bar Review 26 (1948): 117, at 117. Milner referred the reader to what he called a “brilliant account of this philosophy” in Lon Fuller’s “American Legal Realism,” University of Pennsylvania Law Review 82 (1934): 429. 38 Harry W. Arthurs, “Tort Liability for Strikes in Canada: Some Problems of Judicial Workmanship,” Canadian Bar Review 38 (1960): 346. The article was very recently cited by the dissenting judges in a Supreme Court of Canada case in which the Charter (section 2(d)) was used by the majority to prevent the Saskatchewan government from banning strikes by public service workers: Saskatchewan Federation of Labour v Saskatchewan, [2015] S.C.C. 4. Harry would, of course, normally be happy to be cited by dissenters, but perhaps not in this case. Would he be pleased with the majority decision? As is well known, he has expressed doubts about using the Charter in such cases. See Harry W. Arthurs, “Constitutionalizing the Right of Workers to Organize, Bargain and Strike: The Sight of One Shoulder Shrugging,” Canadian Labour and Employment Law Journal 15 (2010): 273–86. So one suspects that there was muted applause.

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39 W.P.M. Kennedy and Jacob Finkelman, The Right to Trade: An Essay in the Law of Tort (Toronto: University of Toronto Press, 1933). 40 Arthurs, “Woe unto You,” 664. 41 See Girard, Bora Laskin, 269; A. Alan Borovoy, At the Barricades: A Memoir (Toronto: Irwin Law, 2014). 42 Girard, Bora Laskin, 45–8. 43 Arthurs, “Woe unto You,” 665–6. 44 Consultative Group on Research and Education in Law, Law and Learning, at 71. 45 Ibid., 69. 46 Hilaire Barnett, “The Province of Jurisprudence Determined – Again,” Legal Studies 15 (1995): 88. 47 [1961] A.C. 290. See P.S. Atiyah, “The Legacy of Holmes through English Eyes,” Boston University Law Review 63 (1983): 341, at 343–9. 48 Ben Palmer, “Hobbes, Holmes, and Hitler,” American Bar Association Journal 31 (1945): 569. 49 Lon Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart,” Harvard Law Review 71 (1958): 630, at 657. 50 David Dyzenhaus, “Holmes and Carl Schmitt: An Unlikely Pair,” Brooklyn Law Review 63 (1997): 165. See also Albert Alschuler, Law without Values: The Life, Work, and Legacy of Justice Holmes (Chicago, il: University of Chicago Press, 2000). 51 Frederic Kellogg, Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint (Cambridge: Cambridge University Press, 2007), 172. 52 Holmes, “The Path of the Law,” 459. 53 Richard Posner, “Foreword: Holmes,” Brooklyn Law Review 63 (1997): 7, at 17; see also Robert W. Gordon (ed.), The Legacy of Oliver Wendell Holmes, Jr. (Edinburgh: Edinburgh University Press, 1992), particularly the editor’s introduction, at 6–7. 54 Ibid., 9. 55 W.P.M. Kennedy, “Review,” University of Toronto Law Journal 4 (1942): 431.

23 Confronting the Dragon of Globalization: Harry, St George, and Me David M. Trubek Wisconsin

1 introduction

As I reflect on the incredible body of work on law, labour, legal education, and globalization that Harry Arthurs has produced, and consider our shared concerns about the impact of global change, I think of a painting in my dining room by Sergio Campos Mello, my favourite Brazilian artist. This painting portrays themes from Brazilian popular art, including Saint George in the process of slaying the dragon. St George and the Dragon has been a favourite subject for artists from Paolo Uccello to the present day. Usually, the Saint is portrayed as a glorious warrior who has saved a maiden from death. The maiden stands or kneels in the background, often in prayer, sometimes rejoicing. In many pictures, the Saint’s lance has already pierced the dragon, who is shown bleeding and in its death throes. But Campos Mello’s St George is very different. He has drawn him as a figure from the popular art of Afro-Brazilian religions. He is not so grand, nor is he victorious. His lance is pointed at the dragon but the beast is still alive and dangerous. There is no maiden in sight. Unlike the works of Uccello, Raphael, and many others, this painting is anti-heroic. Could Harry Arthurs and I take this more modest image as symbolic of our struggle against the impact of globalization on law and

342 David M. Trubek

life in our times? Like Saint George, we confront a force that threatens communities and values that we cherish. But, like Campos Mello’s Saint, we can claim no victory, nor can we aspire to the status of hero. We are just foot soldiers in a battle, not glorious knights in armour. Our dragon is very much alive and spitting fire! The maidens would do well to cower and pray. What does this dragon look like? Globalization, as Harry sees it, is not just about flows of trade and capital; rather, it is also a worldview. Globalization, says Harry, “is an ideology. Beneath this ideology lies a bedrock assumption: that governments, which interfere with the free flow of goods, services, capital and information (but not people) impair their capacity to maintain a dynamic economy.”1 In what Harry calls this “globalization of the mind,” the law’s mission is to make the world safe for markets. This new constitutional grundnorm, he argues, has led to the hollowing-out of the state, the rise of  non-state transnational legal regimes which are created more by  business than by popular mandate, the decline of the social-­ democratic welfare state, and the weakening of protective labour law in the West. The dragon of neo-liberalism, Harry believes, threatens the accomplishments of many years of collective struggle for workers’ rights, regulation of markets, and a social safety net. In his work, he has sought both to document these changes and to look for alternatives. This has brought us together in several ventures. They include our work to develop the progressive strand of the law and society tradition; to search for a way to build a transnational labour law regime; to reform the universities to ensure that they can cope with the challenges of globalization and counter the pernicious effects of the globa­ lization of the mind; and to envision an alternative political economy. Throughout these encounters runs a common thread: a shared commitment to the construction of knowledge in the service of equality and emancipation. 2 l aw a n d s o c i e t y a s a p r o g r e s s i v e f o r c e

Our first shared project involved the construction of the law and society tradition in North America. Both of us have been involved in this movement since the 1960s: we had both joined the Law and Society Association when it was just getting started. But my first real contact with Harry came later in the law and society project at the

Confronting the Dragon of Globalization 343

Canadian Institute of Advanced Research (ci ar). Harry was one of  the pioneers in the law and society movement in Canada and was tapped by the remarkable head of ci ar, Fraser Mustard, to lead this effort. As someone who had been active in building the law and society tradition in the United States, I served on the ci ar advisory board. Our engagement with the law and society project was not just a professional endeavour; it was also a political statement. Law and society as an academic field initially developed as an adjunct to progressive politics; in the United States, this had meant the Great Society, the War on Poverty, and the Civil Rights movement. The project was founded on the belief that social research could identify the causes of social problems and that law could help solve them. Law and society scholars would understand the roots of social problems and study the best way to deal with them through law. This work would provide ammunition for those seeking to use the law to reduce poverty, combat discrimination, and protect vulnerable populations.2 Law and society required a major transformation in the academy. It demanded a reconceptualization of law as institution and social process rather than as an abstract set of rules. It called for the integration of lawyers and social scientists. It changed the boundaries of what was considered valid legal research, and made new demands on professors and institutions. Harry and I devoted considerable energy to the law and society project. The movement was initially met with resistance: law schools were not universally supportive of the endeavour; social scientists are some­times wary of working too closely with lawyers. We each pitched in, one way or another, to overcome this resistance, strengthen the field, and ensure that it influenced thinking about the law. I served on the lsa Board. Harry helped create the Canadian Association and served as chair of the ciar law and society programme. We worked to make our own law schools centres of law and society scholarship. Law and society scholarship has flourished in both countries, and North America is the acknowledged centre of what is now a worldwide movement. Many of the core ideas that law and society pioneered have now passed into the mainstream of North American legal scholarship. Almost everyone now recognizes that law is a process, that it should be assessed by its effects in society, and that empirical study is an important part of legal scholarship. While the tight alliance between law and society studies and progressive

344 David M. Trubek

politics came unstuck, elements of this relationship continue, the field still holds emancipatory promise, and Harry and I both remain active participants. 3 wag e n e t a n d t h e s e a r c h f o r a t r a n s n at i o n a l l a b o u r l aw r e g i m e

The law and society tradition undergirds the struggle against the negative effects of globalization in the legal academy. It provides some of the intellectual tools that are needed to understand how law plays a role in the globalization process and to see how law can be used to combat its negative effects. But law and society research had initially focused primarily on domestic legal systems; only recently has it started to develop the tools needed to deal with global governance and transnational regimes. My second encounter with Harry involved the need to expand one aspect of the law and society framework in order to deal more effectively with the challenges of globalization. The project was called wag en et (the Work And Global Economy Network). It arose out of our work on labour law in a global economy. Harry, who is one of the leading labour law scholars in North America, was among the first to call attention to the impact of globalization on national labour law regimes. Globalization places domestic labour law regimes into competition and creates pressures that can weaken their effectiveness. Transnational regimes, whether public or private, affect domestic law: if these regimes are not supportive of labour law values, they can erode the fruits of prior struggles.3 wag ene t was born as a reaction to this situation. It had several goals. The first was to re-envision labour law in a global context so that the impact of global forces and transnational regimes could be better understood. This meant networking labour law scholars from around the world. The second was to bring labour law scholars and those working on international law together to analyze the impact of  international regimes on domestic labour law and determine if reforms at the international and transnational level might buttress domestic labour protections. The third was to link the academic community with activists in order to ensure that research could be translated into effective policy guidance. wag ene t brought these groups together to discuss issues such as the introduction of a social clause in the w to. The social clause debate brought labour lawyers and w to experts together along with

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activists and others. We explored the feasibility of getting the w to to declare that substandard labour conditions were a trade violation. The discussion ranged from doctrinal analysis of the g at t to debates about the impact of such a move on developing economies. We also discussed ways that labour lawyers could work across national boundaries and academics could work with activists. wag ene t was a short-lived endeavour. We were not able to secure the full resources to carry out such an ambitious project. But we did generate new ideas that have diffused, and we built some linkages that have lasted. In a recent essay, Harry pointed to the value of the kind of network which we had envisioned, and noted that others have picked up the torch: Transnational social networks have mounted successful online campaigns against the egregious abuse of workers’ rights. Discursive communities of experts have been able to ­project worker-friendly models of labour market regulation across national boundaries and ensure that they receive ­attention in national policy debates.4 4 university leadership and reform

Some years later, Harry and I found ourselves responsible for uni­ versity policy, Harry as president of York University and I as dean of  International Studies (a campus-level vice-provost role) at the University of Wisconsin-Madison. Harry saw the need for universities to respond to the challenges of globalization and invited me to attend a meeting at York to discuss strategies to equip universities to meet the policy and professional challenges created by global transformation. In the United States and Canada, labour markets, regulatory schemes, and cultural systems were being challenged by globalization. In 1997, he expressed the fear that Canadian elites were in danger of succumbing to the “globalization of the mind” and urged that they seek alternatives to this ideology.5 He saw that neoliberal ideas were influencing policy discourse in Canada as elsewhere. He saw that universities needed to develop new capacities to deal with the issues presented by globalization. He hoped that would help Canada frame its own authentic response. These were issues we were facing in the United States: as dean of International Studies I had worked hard to put globalization and its discontents on the agenda at the University of Wisconsin-Madison.

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So, I was proud to be of some help to Harry as he sought to guide York through this challenge. Although academic traditionalism, budgetcutting, and bureaucratic routine have hindered some of the reforms at my own university, important changes have occurred on both sides of the border and beyond. There is a growing critical discourse on global governance in both the North and the South that challenges many of the neo-liberal tenets about which Harry is concerned.6 5 ta k i n g s to c k : l aw a n d s o c i e t y a n d   t r a n s n at i o n a l l a b o u r l aw

Many of the things that Harry and I worked for have come about. A number of global networks exist that carry on the ideas fostered by wag en et. Universities are confronting globalization and have come to support law and society work. One very promising development is in the law and society field itself. The field is well established south and north of the US-Canada border and is growing around the world: there have been law and society movements in Japan and Europe for decades; recently, new networks and associations have been established in East Asia, Latin America, and India. The field continues to provide insights into social problems and their possible resolution. The movement has been internationalized: global and transnational topics, including transnational labour issues pioneered by wag e n e t, are common both at meetings and in journals. Indeed, the Law and Society Association recently created a Col­ laborative Research Network on Transnational and Global Legal Ordering. This network addresses the processes through which international organizations and transnational networks create law and legal norms, and, in the process, shape national and international social, political, and economic fields. l sa’s 2015 annual meeting features numerous panels on transnational regimes, including several on transnational labour law activity. For example, a panel on “Labor Activism in Comparative Perspective: International Trade Unions, Human Rights and Domestic Institutional Frameworks” asks: How do labor activists use human rights discursively and insti­ tutionally to instigate social change? What is the role of the international trade union movement in securing labor rights? Can legal mobilization prove useful in addressing workplace discrimination?7

Confronting the Dragon of Globalization 347

I am sure Harry and other wage n e t veterans would be happy to see that the themes we put on the table years ago are still actively debated. 6 the final challenge: envisioning a n   a lt e r n at i v e p o l i t i c a l e c o n o m y

Not everything that we hoped for has materialized, but at least some weapons have been forged and the Dragon has been kept a little on the defensive. But there is a final challenge that is still with us: I call it “envisioning an alternative political economy.” If, as Harry argues, globalization is an ideology, then it has to be confronted at that level. Globalization, in the sense in which Harry uses the term, is really a form of global political economy, an argument about how to bring about world prosperity. If it is to be challenged, if the Dragon is to be defeated, the struggle must be on the same plane. To be sure, the growing body of critical work on globalization is important. But to fully defeat this Dragon, we must go beyond critique, and work towards the creation of an alternative political economy. To this end, the insights of law and society scholarship, the global linkages forged through institutions such as wag en et, and the resources of globally engaged universities all will be needed. Recent data on global income distribution help to put the challenge in context – and offer some clues to differences in the ways in which Harry and I have approached the Dragon. In a recent column entitled “Twin Peaks Planet,” Paul Krugman describes a study by Christoph Lakner and Branko Milanovic that shows which groups gained the most through globalization in the period between 1988 (when the neo-liberal revolution really took hold) and 2008.8 Two groups have seen their incomes grow substantially: the incomes of the people in countries in the Global South such as China and Brazil have soared, as have those of the people in the very top of the income distribution in the Global North. At the same time, other groups, especially the working and middle classes in advanced countries, have gained little in absolute terms and have lost relative to the rich. Hence the twin peaks: if you chart the percentage of income growth by region and by income level within each region, the two groups that saw the greatest growth in this period were people in China who were poor in 1988 and people in the advanced countries who were

348 David M. Trubek

rich in that year. Seen from the heights to which former Chinese peasants have climbed, and the similar peak the advanced-country 1 per cent have reached, globalization looks pretty good. Seen from what Krugman calls “the valley of despond” where advanced-country workers whose incomes have grown much less reside, it doesn’t look so great. This is especially true when one looks at the growing levels of inequality within the advanced countries due to the combination of stagnation in the middle and the soaring wealth at the top. You could look at these data and see a glass half empty or half full. Half full because millions have been lifted out of poverty. Half empty because important gains for the poor and working classes in many advanced countries have eroded. Harry sees both sides of this issue. Thus, he notes: the situation of workers in the advanced economies has in many respects deteriorated rather than improved over the past 20 or 30 years. At the same time, and with extensive caveats, it would be fair to say that conditions for workers in a number of developing economies have improved to some extent during the same period.9 To be sure, given his roots in Canadian labour law, Harry has been especially concerned with the half that is empty; given my background in development studies and my fifty-year engagement with Brazil, I tend to emphasize the half-full story. But we both agree that half a glass is not enough! I know, as Harry does, that globalization may have lifted incomes in the South, but it has not occurred in ways that always provide real benefits for workers in those countries. Harry knows, as I do, that the benefits of globalization to the North have been largely appropriated by the elites. Now back to the Dragon. The ideology of globalization that Harry decries has played a role in constructing this “Twin Peaks” world. On the one hand, deregulatory ideas have helped legitimate the removal of barriers to global economic integration. The opening of the world economy has been a major factor in the rapid growth of economies such as China and Brazil and thus in income growth there. But, at the same time, the anti-state bias in this body of thought has made it difficult both to protect workers in the advanced countries from the negative effects of globalization and to guarantee that the full benefit of globalization is shared by workers in the South.

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This issue is clear: is there a form of political economy, a set of ideas, that can help us secure the benefits of greater global economic integration without the costs being imposed on workers both North and South? This is the spear that would slay the Dragon. Harry and I hope so. We each have projects that form a part of the search: Harry seeks to transform labour law into a general law of economic subordination; I have sought to revitalize the field of law and development and to introduce some progressive ideas. A major challenge of those who seek to develop an alternative political economy are the claims made by neo-liberalism concerning growth and productivity. Proponents of this vision argue that privatization, deregulation, and liberalization guarantee competitiveness and growth. Critics have pointed out that this formula doesn’t always work, and that when it does, it tends to lead to income concentration. To challenge this, we need not only a critique of these ideas, we also need an alternative model that shows how to achieve growth with equity in both the North and South. One line of inquiry that I have followed is to explore new forms of the developmental state in countries such as Brazil. In recent years, Brazil has experimented with new forms of state engagement in the economy while also fostering social inclusion and poverty reduction. While it is too early to say how viable these “new developmental state” approaches will be for the long haul, they do at least show the possibility of alternatives to neo-liberalism.10 7 conclusion

People committed to meeting the final challenge can stand on the pillars that Harry and I helped erect: a socio-legal consciousness, a global vision of labour law, transnational scholarly networks, and robust universities capable of contesting dominant narratives. These allow both us and others to contribute to the overall challenge of globalization. Harry and I, in our separate projects, have, ourselves, been able to use this base to take some small steps towards a new vision of the global economy and polity. Much more needs to be done. We have not slain the Dragon or saved the maiden. But we continue the struggle, and I am proud to be walking along, yet again, with my dear friend Harry Arthurs.

350 David M. Trubek

N ot es   1 Harry W. Arthurs, “Law and Learning in an Era of Globalization,” German Law Journal 10 (2009): 629, at 632.   2 See David M. Trubek, “Back to the Future: The Short, Happy Life of the Law and Society Movement,” Florida State University Law Review 18 (1990): 1.   3 David M. Trubek, Jim Mosher, and Jeffrey S. Rothstein, “Transnationalism in the Regulation of Labor Relations: International Regimes and Trans­ national Advocacy Networks,” Law and Social Inquiry 25 (2000): 1187.   4 Harry W. Arthurs, “Making Bricks without Straw: The Creation of a Transnational Labour Regime,” in Critical Legal Perspectives on Global Governance: Liber Amicorum David M. Trubek, ed. Gráinne de Búrca, Claire Kilpatrick, and Joanne Scott (Oxford, u k : Hart Publishing, 2014), 141. (Incidentally, the dust jacket design for this book is based upon the Campos Mello painting described above.)   5 Harry W. Arthurs, “Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields,” Canadian Journal of Law and Society 12 (1997): 219.   6 See, for example, de Búrca, Scott, and Kilpatrick, eds., Critical Legal Perspectives on Global Governance.  7 lsa 2015 Preliminary Program, https://ww2.aievolution.com/lsa1501/ index.cfm?do=cnt.page&pg=1004&requestTimeout=10000, last accessed 24 July 2016.   8 Paul Krugman, “Twin Peaks Planet,” New York Times (1 January 2015). The study referred to is Christoph Lakner and Branko Milanovic, “Global Income Distribution from the Fall of the Berlin Wall to the Great Reces­ sion,” World Bank Policy Research Working Paper 6719, December 2013.   9 Arthurs, “Making Bricks without Straw.” 10 See David M. Trubek, Helena Alviar Garcia, Diogo R. Coutinho, and Alvaro Santos, Law and the New Developmental State: The Brazilian Experience in Latin American Context (Cambridge: Cambridge University Press, 2013).

24 Reading Landscape and Power Bruno Caruso Catania

1 introduction

The final passage of the essay “Landscape and Memory” is a remarkable text in labour law scholarship. It is worth citing at length: Memory – the tacit, informal, and reflexive norms, institutions and processes which constitute and interpret social meaning in the workplace and elsewhere – is contingent, variable, pluralistic. Common memories, the perception of participating in a common past and future, can promote solidarity and sharing. However, those who do not share memories are, by definition, “others.” In this sense, memory promotes solidarity by promoting exclusion … Moreover, by denying or de-emphasizing the possible universal dimension of experiences, referents, assumptions and values, memory also circumscribes the possibility of general explanatory theories. It stands in the way of our seeing that changes in people’s working lives and in labour law and industrial relations more generally, are inescapably embedded in and generated by broader and more complex changes in the landscape of state law, politics, and political economy. To this extent, memory – and legal pluralism, the acknowledgement of memory – also inhibits the development of a broad sense of community and constrains the prospects for popular action. Landscape – the ineluctable product of political economy, of state and state law is of course not as ineluctable as all that; it is mediated by memory.

352 Bruno Caruso

State labour law – by itself – had limited power to alter power relations. It could neither prevent children from working in Victorian coal mines nor ensure that women and blacks were afforded equity and dignity in modern workplaces; it could neither wholly suppress unions in the first American age of robber barons nor much sustain them in the second. Only to the extent that memory intervened, to the extent that the workplace norms and institutions which reproduced and reinforced power relations were gradually modified by informal and embedded practice consonant with the expectations of state law, was it possible to say that state law had taken hold. Landscape without memory is almost unthinkable, or at least unintelligible.1 For those concerned with labour organizations and labour regu­ lation, there is much of our modern predicament worked carefully into this short passage. It warrants some exposition, and this contribution to the volume about its author will both reflect on and react to it and to its filiations in contemporary legal scholarship. Adopting an Italian perspective here, I will place this passage in the context of two other contemporary pieces. 2 h ow to t h i n k a b o u t g lo b a l i z at i o n

There are many ways to think about globalization,2 and our engagement with its concepts and consequences does not stand still. For  labour markets, one key area of focus is the impact of new techno­logies on timing and space production and organization, an impact that has unfolded in several phases, perhaps the most recent being a “digital revolution.” These technological changes have had a profound impact on every dimension of social organization, but parti­cu­larly on the transnationalization of production and the reconfiguration of domestic production, with consequential reorganization of labour markets.3 Labour law scholars in Europe and North America have reacted to these changes. Early on, one important reaction was to “globalize” their analysis, both the subject of their research as well as the scope of their policy engagement.4 The elements of economic globalization called into question the twentieth-century labour relations paradigm of the Fordist era, which was at the basis of the formulation of industrial pluralism (simplified to capital combined with labour or capital

Reading Landscape and Power 353

versus labour) and the varieties of local labour relations regimes, which were as varied as the capitalism that gave rise to them.5 At the centre of this scholarship has been economic globalization’s broader social effects, or what has sometimes been termed the “social question” in a context of “disembeddedness.”6 Our changing vocabulary gives us clues about how this process has evolved. For example, the dualism referred to above has been used variously to describe the dominant twentieth-century labour relations paradigm (e.g., capital versus labour), and also as a phase in the process of the decline of the welfare state or democratic capitalism, as capital eclipses labour in market power and political power.7 From one perspective, the post-1945 labour relations systems adopted in Europe and North America were “universalist,” in the sense that a labour and employment relations system which applied to most workers in an economy was created, and this provided an effective countervailing power to capital and effected a distribution of the profits of production. (Of course, this universalism can be, and was, critiqued for what it excluded, notably women and racialized participation in the workforce.) The universalist perspective was also challenged by the “dualist” moment or characterization. In its original formulation, dualism may refer to two components of the system, capital and (or versus) labour, which, for better or for worse, was coordinated by the post-1945 industrial relations systems. However, from about 1980 onwards, as the “labour” component came under attack and was fragmented, dualism began to refer to a dualism within labour regulation systems themselves, as various concessions on the part of labour regulation over the 1980s and 1990s were imposed, creating greater room for exclusion and eroding the universalist ideal (which was never a reality anyway). The terms “two tier” or “second class” were often used to characterize these changes, and this trend has become acute in Italy today. In some jurisdictions where this second form of dualism has manifested itself for some time, the basic metrics of units of labour, such as union density, are lower than at any time in history, so that dualism may now no longer be useful to describe a politics or economics within which capital has effectively displaced the political and market powers of labour.8 In the current moment, we might be witnessing a fragmentation of what was formerly called labour and a labour struggle into other social fields, and a consequent fragmentation of “labour regulation” accordingly, a theme we will return to in the last part of these comments. We should

354 Bruno Caruso

note that capital has not undergone a similar fragmentation, at least in terms of market and political power, and, in fact, may have consolidated its position vis-à-vis markets and political intervention through its response to the financial crisis of 2008–09. In this sense, globalization as a discourse represents both an analytical break with the former modes of analysis and, at the same time, an oddly unifying vocabulary, if not set of analytical factors. In discussing the elements of economic globalization as well as its many social effects for labour and labour regulation, new vocabularies began to be produced to describe what we were observing and the responses to it of the twentieth-century labour-relations paradigm.9 We began to speak of the rise of nonstandard work in the context of post-industrial or deindustrialized nations. There, for a time, developed a discussion of the “new economy,” particularly with reference to the emergence of communications technology and computing industries.10 In Italy, one school of thought described the emerging phenomenon of “affective labour” or “immaterial labour” – their term for the growing category of various forms of services, including knowledge work and communications.11 Elsewhere, the terms “precarity” and the “precariat” were developed to describe similar conditions.12 As noted above in passing, the major post-war labour-relations institution, the trade union, began to be described in different ways with different roles, such as “social unionism,” emphasizing roles for unions outside the workplace, such as organized child care, and “political unions” – the latter perhaps not focused primarily on the labour market at all.13 Law and policy efforts around the globe have focused on these terms for over the past ten or fifteen years. The dismantling of these traditional categories (to use François Dubet’s phrasing)14 forced us to rethink the way in which we used the concept of inclusive solidarity in labour law regulatory strategies. Inclusive solidarity had to expand its focus, not only on the underlying employment relationship, but by being reoriented to­­ wards an inclusion of the effects of the new precarity that accompanied globalization. These terms for the new arrangements of work also encompassed, or implied, their consequences. Once confined to the sphere of manual labour (versus capital), the newly emerged precariat now includes craftsmen, small traders, small businessmen, impoverished professionals, indebted families, and students, as well as an aging workforce and, overall, the dearth of work, so that we no longer discuss labour

Reading Landscape and Power 355

relations as a problem of work but as the problem of precarity. The conditions of increased inequality that attend globalization – the increase in poverty, in unemployment, the new risks of social exclusion – have resulted in a new priority for safety and inclusion strategies at the centre of labour law, in addition to – or perhaps displacing – earlier emphasis in discussions of (mere) distributive justice focused on industrial work. Although it comes with difficulties, including the difficulty of renewing one’s intellectual capital, developing these new vocabularies and responses to economic globalization is both necessary and rewarding. The landscape has changed, and we have used our memories – in Arthurs’s sense, our received framework of norms and solutions – to interpret and to adapt our way of thinking and responding to the pressing needs that the new landscape has drawn to our attention. We have debated sometimes whether minor adjustments to our received frameworks (memories) can be made to cope with new forms of a still-familiar problem of work, such as declining union density, albeit with perhaps mixed success at best. As we would expect, institutions of memory – of the dualist framework – have only attempted to reframe their responses to these new challenges with great difficulty. In the context in which the new subject struggles, we have had to change, pass over, or reject some of the terms and conceptual sanctuaries of the twentieth century: “workers,” “class,” and “solidarity” are all more difficult to use today. In addition, their claims to social outcomes, “social justice,” “market justice,” and “equality” have become equally doubtful, at the same time that they are, perhaps, most at risk of being abandoned as being unachievable. In addition, facing new subjects – such as independent workers, small business owners, enlightened managers, the managing teams of social companies, all manner of new service workers, interns, and the organizers of non-profit organizations and volunteer services – the existing categories have to be adapted, innovated, or dropped at a rapid pace. These subjects may become important new constituents of an emerging and increasingly transnational labour relations narrative. At the same time, these, and even the original constituents, might now assume multiple identities: those of consumers, investors, taxpayers, family members, and others, which have implications for the conceptualization of the social question and of the traditional actors and logics of representation and the identification of the collective interest to be represented.

356 Bruno Caruso

3 h ow to t h i n k a b o u t l a b o u r r e g u l at i o n

These transformations require a fundamental reflection on both the place and the role of labour law. Thinking about globalization along these lines has required what I will call, for lack of a better term, a “holistic” form of analysis: one that incorporates the actors and events outside the dualist framework described above. We have noted that globalization discourse has provided an oddly unifying form of analysis of current trends – which unifies, in some respects, because it conceptually links the economic and social impacts of the trends from a transnational perspective; which operates at times at the transnational level, and at times at local levels; and which copes with a fluidity in the subject. At times, the dualist framework of labour relations is stubbornly domestic in scope and character, seemingly unable to cope with the changes in production and the r­ eorganization of the workforce with transnational dimensions. This framework was also critiqued as one that was once responsive and reflective, but became increasingly juridified during the last decades of the twentieth century, giving way to terms such as the “flexibilization” of labour markets and regulation that sought to institutionalize the second form of dualism referred to above while retaining some aspects of universalism. Flexible regulatory programmes, or versions of them attendant with the financing available from the e cb, the European Union, and the i mf following 2008, are now being implemented in Italy, Portugal, Spain, and, of course, Greece. Perhaps the major innovation in regulatory response in the 2000s was the modification of the dualist paradigm into a flexible-but-secure model or approach to labour regulation and social security, called “flexicurity,” which has been experimented with in the E U. These approaches attempted to address inflexibility in labour market rules in the hope that this could encourage or permit more robust levels of employment in, hopefully, “good jobs,” or at least better ones. At this point, it is probably fair to say that the results have been, at best, mixed, and more often worse, even dire.15 It appears that our work with our landscape and our memory has not yet been completed.16 Harry Arthurs has been a clear and eloquent voice through all this. Through his scholarly engagement, we have more properly seen the interaction between landscape and memory, which has helped us to reconceive the linkages between the two. One example of this work includes the recombination in the analysis of subdisciplines that we

Reading Landscape and Power 357

once treated too separately. We see, for example, that favouring selfemployment as an alternative to standard work corresponds to incentives within tax law regimes, something we did not do well under our old dualist frameworks. Another example: the function of organizing and facilitating new models of worker involvement in companies – often seen as something progressive and even redistributive of opportunity, particularly in the new or innovating sectors of an economy – is actually a function of corporate law. Thinking along these lines was once fairly strange for labour law scholars, and yet these are the trajectories that we must engage with if we are to move from criticism to critique: that is, if we follow what I have called the holistic conceptualization of workplace regulation that corresponds to the actual conditions of the subject of the worker.17 Arthurs has recently challenged us to do this through a powerful and critical, indeed ambitious, thought experiment. He asks us to conceive of the “law of economic subordination and resistance.” Perhaps challenging us to distinguish between mere semantics and a  meaningful reconceptualization of the role of law, through this exercise, labour regulation becomes one strand in an interconnected regulatory net alongside tax, competition, and / or corporate law. It is  a  quintessential expression of a holism in that it requires us to address properly our expanded subject with its multiplicities of identity and circumstance. One of the tasks (and, indeed, one of the pitfalls) of this approach is the potential to lose sight of the subject – to wit, transformative social actors. Historically, the twentieth-century response to the social question was a comprehensive intervention not only in labour markets, but also in many other markets. They invented a complex system of social legislation ante litteram, not just addressing the social question through collective bargaining and labour law, but also through the regulation of credit, progressive taxation of very great wealth, public ownership and development of infrastructures, and closer regulation of financial capital.18 As these systems specialized over time, we became acutely aware of their exclusions. Aware of this, Arthurs’s proposition of a law of economic subordination and resistance is presented against the risk of diluting the function of labour law, as it were, within an all-­ encompassing regulatory universe, the risk that we eventually fail in our efforts to make labour law – or, more correctly, its frameworks and its regulatory techniques – ancillary to other regulatory

358 Bruno Caruso

subsystems. Instead, the task he gives us is one of considering whether labour law actually is and can further be capable of exporting not only its protective logic, but also its function of economic development and efficient labour market regulation, to other legal subsystems and to other markets. This is the task before us today. 4 t h i n k i n g f u r t h e r a b o u t r e s i s ta n c e

We may be forgiven if, today, having displaced the dualist framework of labour regulation and engaged with a polycentric mix of, inter alia, corporate law, taxation law, and competition law, it is easier to conceive of a law of economic subordination than a law of resistance. These legal fields are, in many respects, designed to suit the needs and preferences of capital, not those of labour (or, if we are more precise, those of workers). We must acknowledge that we (can) suffer from the excesses of the “pessimism of reason,” and we must not dwell here. Arthurs, who has delivered some highly critical reports on the current conditions, would, I believe, identify himself as a “positive realist,” and this is a requisite orientation. It is also one that properly echoes the origins of American legal realism that was the heart of the early-twentieth-century project which we must reform or reformulate. Arthurs himself is convinced that a strategy of resistance, political as well as regulatory, cannot be entrusted solely (in the desolate globalized landscape) to the tools of the social democratic tradition: the national institutions of the political-parliamentary democracy, the trade unions, protective non-derogable legislation, and collective bargaining.19 These institutions may be part of some future landscape of resistance, but we know that they have failed to address the problem today, and thus we will have to learn to look beyond them. Is our image of the landscape so excessively desolate? Are we misremembering a halcyon past? How has our collective memory made it so? As we write this piece today, in Italy in spring 2015, the twentieth century is being determinedly dismantled as conditions for structural adjustment loans in Italy, Greece, Spain, Cyprus, and Portugal. Here, it is far more difficult to look out our windows and see a collective future that makes our collective past look comparably brighter. Perhaps we do not yet know how to think in a systemic way about resistance, and so our examples are always localized and not generalizable, perhaps barely comparable. Examples do exist, and they perhaps form a sort of cumulative learning about our subject and context.

Reading Landscape and Power 359

We have accepted, it would seem, that we cannot reverse globalization, which once might have seemed possible. But we have better articulated our concerns with its effects, most pronounced recently in Thomas Piketty’s work on inequality, which has spurred us to think again about strategies of resistance.20 Such strategies of resistance are – or will be – in no small part the legacy of socially creative action by the old actors in unions and labour parties. But they must also concern the new actors in co-operatives and social clubs, and ecological and religious organizations, whose reasons for being are, in different ways, the protection of collective interests. N ot es   1 Harry W. Arthurs, “‘Landscape and Memory’: Labour Law, Legal Plura­ lism and Globalization,” in Advancing Theory in Labour Law in a Global Context, ed. T. Wilthagen (Amsterdam: North Holland Press, 1997).   2 Literature on globalization is now nearly endless. For some contributions, see Andrew Halpin and Volker Roeben, eds., Theorising the Global Legal Order (Oxford, u k: Hart Publishing, 2009); Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, nj : Princeton University Press, 2008); Peer Zumbansen, “Defining the Space of Transnational Law: Legal Theory, Global Governance & Legal Plura­ lism,” Transnational Law & Contemporary Problems 21 (2012): 305–35 (Comparative Research in Law & Political Economy Research Paper No. 21 / 2011, http://ssrn.com / abstract=1934044). For two pieces by Arthurs, see “Labour Law as the Law of Economic Subordination and Resistance: A Thought Experiment,” Comparative Labor Law and Policy Journal 3 (2013): 585–604; and “Who’s Afraid of Globalization? Reflections on the Future of Labour Law,” in John D.R. Craig and S. Michael Lynk, Globa­ lization and the Future of Labour Law (Cambridge: Cambridge University Press, 2011), 51.   3 These trends are not reviewed here, but involve the widely noted deindustrialization combined with expansion of financial sectors in industrialized economies and expanded service sectors, which are linked to the changing composition of labour markets in industrialized economies, giving rise to inequalities in market distribution of incomes and wider overall measures of inequality; labour regulation lies at the intersection of “the market” and “the social,” and it becomes convenient, using Wolfgang Streeck’s formulations, to refer to “market justice” and “social justice” separately for some purposes.

360 Bruno Caruso

  4 It is in such a sense that we might compare Harry Arthurs’s work on globalization and its effects in “ideal” continuity with the great European labour law scholar Massimo D’Antona, who, born in 1948, was assassinated in 1999 by the Red Brigades. In an essay that appeared shortly before his death (“Diritto del lavoro di fine secolo” [1998], included in Bruno Caruso and Silvana Sciarra, Massimo D’Antona, Opere, I [Milan, Italy: Giuffrè, 2000]), D’Antona provided an early analysis of the reasons behind the crisis in the traditional narration of labour law in the twentieth century. This crisis he identified in the collapse of the four original supporting pillars of labour law in the twentieth century: the nation-state, the big Fordist factory, full employment, and the general representation of work through the unions. In rereading Harry’s writings we find between these two labour law scholars, despite their being culturally separated by the Atlantic, exactly the same awareness of the great labour law questions. Echoing the final paragraphs of D’Antona’s essay, dedicated to “­values, politics, and economics in supranational and infranational labour law; post-occupational issues and post-material interests; the problematic constitutional nature of labour law at the end of the century; intergenerational justice; immigration and social citizenship,” Harry’s work explores this very constellation from a Canadian as well as a global-transnational and legal pluralist perspective.   5 See the important collection by Peter Hall and David Soskice, eds., Varieties of Capitalism (Oxford, u k: Oxford University Press, 2001). Globalization research begins in earnest in the 1990s, but describes a series of economic and social (and cultural) phenomena that begin ­earlier – to pick a date, we might say 1980 or a decade to either side, depending on the analysis. Generally speaking, the varieties of capitalism literature predate the globalization literature by about a decade, but can be seen as contiguous with it, having emerged to describe the varying Western economic policy responses to the market shocks of the 1970s (very generally, oil prices, inflation, and stagflation).   6 Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston, m a: Beacon Publishers, [1944] 1957). See also Karl Polanyi, Globalisation and the Potential of Law in Transnational Markets, ed. Christian George and Josef Falke (Oxford, uk , and Portland, or : Hart Publishing, 2011).   7 Patrick Emmenegger, Silja Häusermann, Bruno Palier, and Martin SeeleibKaiser, The Age of Dualization: The Changing Face of Inequality in Deindustrializing Countries (Oxford, u k : Oxford University Press, 2012); and, more generally, Fritz W. Scharpf and Vivien A. Schmidt, eds.,

Reading Landscape and Power 361

Welfare and Work in the Open Economy (Oxford, u k : Oxford University Press, 2000).   8 For broad descriptions of these trends see, for example, Wolfgang Streeck and Kathleen Thelen, “Introduction: Institutional Change in Advanced Political Economies,” in Beyond Continuity: Institutional Change in Advanced Political Economies, ed. Streeck and Thelen (Oxford, uk : University Press, 2005).   9 Harry W. Arthurs and Robert Kreklewich, “Law, Legal Institutions and the Legal Profession in the New Economy,” Osgoode Hall Law Journal 34 (1996): 1–60; Harry W. Arthurs, “Reinventing Labor Law for the 21st Century” (The Benjamin Aaron Lecture), Berkeley Journal of Labor & Employment Law 22 (2001): 271–94. 10 Harry W. Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (Ottawa: hrs dc, 2006). 11 Michael Hardt and Antonio Negri, Empire (Cambridge, ma : Harvard University Press, 2000), discussion at 277 et seq. 12 Guy Standing, The Precariat: The Dangerous New Class (London: Bloomsbury Academic, 2011). 13 Ben Sachs, “The Unbundled Union: Politics without Collective Bar­ gaining,” Yale Law Journal 123 (2013): 148. 14 François Dubet, “Integrazione, coesione e disuguaglianze sociali,” 1 Stato e mercato 1 (2010): 52–5, talks about the passage from the paradigm of integration and equality between positions, to one of cohesion and equal opportunities, as the result of the weakening of class inequalities and the infinite multiplication of other inequalities. 15 Katherine V.W. Stone and Harry W. Arthurs, Re-thinking Workplace Regulation: Beyond the Standard Contract of Employment (London: Russell Sage Foundation, 2013). Eurostat lists the unemployment rate as of 31 December 2014 at 26% in Greece, 24% in Spain, and 13% in Italy and in Portugal, above the EU average of just under 10%. While the analysis of the factors in long-term employment trends is complex and not yet known with reference to the changes in labour regulatory paradigms, early signs are not promising. 16 For an excellent example of labour law paradigms’ redefinition, see Mark Freedland and Nicola Kountouris, The Legal Construction of Personal Work Relations (Oxford, u k: Oxford University Press, 2011). See also Michel Coutu, Martine Le Friant, and Gregor Murray, “Broken Paradigms: Labor Law in the Wake of Globalization and the Economic Crisis,” Comparative Labor Law & Policy 34 (2012–13): 565; and, from a different perspective, Guy Davidov and Brian Langille, eds., Boundaries

362 Bruno Caruso

and Frontiers of Labour Law (Oxford, uk , and Portland, or : Hart Publishing, 2006). 17 Another example is a proposal to combine collective bargaining and employment (non-union) legal regimes into a single, graduated, and ­flexible regulatory terrain: David J. Doorey, “Graduated Freedom of Association: Worker Voice beyond the Wagner Model,” Queen’s Law Journal 38 (2013): 511–44. 18 Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, m a : Harvard University Press, 2000). 19 See Harry W. Arthurs, “The Collective Labour Law of a Global Economy,” in Labour Law and Industrial Relations at the Turn of the Century: Liber Amicorum in Honour of Prof. Roger Blanpain, ed. Chris Engels and Manfred Weiss (The Hague, Netherlands: Kluwer Law International, 1998). 20 Thomas Piketty, Capital in the Twenty-First Century (Cambridge, ma : Harvard University Press, 2014).

An Authoritative Bibliography of Harry Arthurs’s Academic and Other Writings books, monographs, and major reports

2013

2012 2008 2006 1990 1985

1983

1980

1971

1968

Re-thinking Employment Regulation: Beyond the Standard Contract of Employment, ed. Arthurs and Katherine Stone (New York: Russell Sage). Funding Fairness: A Report on Ontario’s Workplace Safety and Insurance System (Toronto: Queen’s Printer for Ontario). A Fine Balance: Safe Pensions / Affordable Plans / Fair Rules (Toronto: Queen’s Printer for Ontario). Fairness at Work: Federal Labour Standards for the 21st Century (Ottawa: hrs dc). The Canadian Legal Profession, with D. Stager (Toronto: University of Toronto Press). “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto Press). Law and Learning, as principal author and chair of the Consultative Group on Research and Education in Law (Ottawa: s s hrc). Labour Law and Industrial Relations in Canada, 1st–4th eds., with H. Glasbeek, D.D. Carter, J. Fudge, and G. Trudeau (Brussels: Kluwer / Butterworths). Collective Bargaining by Public Employees in Canada: Five Models (Ann Arbor, mi: University of Michigan, Institute of Labor and Industrial Relations). Labour Disputes in Essential Industries (Ottawa: Privy Council Office).

364 Bibliography

collections, casebooks, and proceedings edited

2005

2004

2000 1998

1977

1971 1966

1965

1961

Administrative Law Today: Culture, Ideas, Institutions, Processes, Values – Essays in Honour of John Willis, University of Toronto Law Journal, conference organizer and guest editor with David Dyzenhaus, Martin Laughlin, and Michael Taggart. Labour Law Casebook, Member, Executive Committee 1994– 2002, Labour Law Casebook Group (Irwin Law, 7th ed.; founding member and contributor to all editions from 1969 to 2004). Course Materials, Labour and the New Economy (LLM programme). Course Materials, Globalization, n a f ta and Labour (Toronto: Osgoode Law School), https://www.library.yorku.ca/find/ Record/1441987, last accessed 24 July 2016. The Collected Writings of Benjamin Aaron, editorial committee with W.W. Wirtz and Clyde Summers (Los Angeles, c a : Centre for Industrial Relations, u cla ). Materials on the Canadian Legal Profession (rev’d. 1976, 1983; co-edited with G. Starr and D. Mills, 1984). Proceedings, Conference on Law and Industrial Relations, Osgoode Hall Law School (organizer and editor with J.H.G. Crispo). Labor Law Casebook, Labor Law Group Trust [US], various labour and employment law casebooks (member of Executive Committee, 1972–75, 1998–2001). Labour Relations Law (revised annually to 1968).

refereed articles, book chapters, and published c o n f e r e n c e pa p e r s

2016a

2016b

“The Economy Is the Secret Police of Our Desires, York University 1985–1992,” in Leading the Modern University: York’s Presidents on Continuity and Change, 1974–2016, ed. Lorna R. Marsden (Toronto: University of Toronto Press). “Labour Law and Transnational Law: The Fate of Legal Fields and the Trajectory of Legal Scholarship,” in The London Lectures in Transnational Law & Global Governance, ed. Prabha Kotiswaran and Peer Zumbansen (Cambridge: Cambridge University Press, forthcoming).

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2015a

2015b

2014a 2014b

2014c

2014d 2013a

2013b

2013c

2013d

2013e

“My ‘Very Idea’ of Rod — And Yours,” in The Unbounded Level of the Mind: Rod Macdonald’s Legal Imagination, ed. Richard Janda, Rosalie Jukier, and Daniel Jutras (Montreal, qc , and Kingston, on : McGill-Queen’s University Press), 9. “The ‘Majestic Equality’ of the Law: Why Constitutional Stra­ tegies Do Not Produce Equality” (Nantes, France: Workshop on Income Inequality, Institute for Advanced Studies, 2014), http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2507900, last accessed 24 July 2016. “The Future of Legal Education: Three Visions and a Prediction,” Alberta Law Review 51: 705–16. “From Theory and Research to Policy and Practice in Work and Employment – And Beyond?” Industrial Relations / Relations Industrielles 69: 420–43. “The Pachyderm and the Predator: Two Fables about the Social Regulation of the Global Firm,” in The Regulation of Work and Employment in Global Firms, ed. Gregor Murray and Gilles Trudeau (New York: Routledge). Arthurs and Annie Bunting, “Socio-legal Scholarship in Canada: A Review of the Field,” Journal of Law and Society 41: 487–99. “Cross-National Legal Learning: The Uses of Comparative Labour Knowledge, Law and Policy,” in Re-thinking Employ­ ment Regulation: Beyond the Standard Contract of Employment, ed. Katherine Stone and Harry Arthurs (New York: Russell Sage Foundation), 353–65. Arthurs and Katherine Stone, “The Transformation of Em­­ ployment Regimes: A World-Wide Challenge,” in Re-thinking Em­ploy­­ment Regulation: Beyond the Standard Contract of Employment, ed. Katherine Stone and Harry Arthurs (New York: Russell Sage Foundation), 1–20. “‘Valour Rather Than Prudence’: Hard Times and Hard Choices for Canada’s Legal Academy,” Saskatchewan Law Review 76: 73–94. “Labour Law as the Law of Economic Subordination and Resis­ tance: A Thought Experiment,” Comparative Labor Law and Policy Journal 34: 585–605. “Making Bricks without Straw: The Creation of a Transna­ tional Labour Regime,” in Critical Legal Perspectives on Global Governance: Liber Amicorum David M. Trubek, ed. Claire

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2011a

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2010b

2010c

2010d

2010e

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Contributors

S i mon A rc h e r is co-director of the Centre for Comparative Research in Law and Political Economy, Osgoode Hall Law School, York University, Toronto, and a labour lawyer with Koskie Minsky llp in Toronto. K e v in Ba nk s is an associate professor and director of the Centre for Law in the Contemporary Workplace, Faculty of Law, Queen’s University, Kingston, Ontario. A d el le B l ac k e t t is an associate professor and William Dawson Scholar, and director of the Labour Law and Development Research Laboratory, Faculty of Law, McGill University, Montreal. B ru no C a ruso is a full professor at the University of Catania and an adjunct professor at the l ui s s in Rome. At present, he is labour minister in the Sicilian government. G uy Dav id ov is Elias Lieberman Chair in Labour Law, Hebrew University of Jerusalem. D av id Door e y is an associate professor of labour law at York University in Toronto. D a nie l Dr ac he is a professor emeritus of political science and a senior research fellow, Robarts Centre for Canadian Studies, York University, Toronto.

378 Contributors

R u th D uk e s is a senior lecturer in law at the School of Law, University of Glasgow. D av id D y z e nh aus is a professor of law and philosophy, ­Uni­versity of Toronto. C yn th ia E st l und is the Catherine A. Rein Professor at the New York University School of Law. Ma r k Fr e e dl a nd, qc (Hon), fba, is an emeritus professor of employment law, University of Oxford, and an emeritus research fellow of St John’s College, Oxford. Ma rtin F r ie d l a nd is dean emeritus and professor emeritus of the Faculty of Law, University of Toronto. R ob e rt W. Gor d on is a professor of law at Stanford University and Chancellor Kent Professor of Law and Legal History, Emeritus, at Yale University. Mor l ey Gund e rso n holds the c ibc Chair in Youth Employment at the University of Toronto and is a professor at the Centre for Industrial Relations and Human Resources, the Department of Economics, and the School of Public Policy and Governance. B r ia n La ngil l e is a professor of law at the University of Toronto. Mic ha e l L y nk is an associate professor of law at the Uni­versity of Western Ontario, London, Ontario. S a lly E ngl e Me r ry is Silver Professor and professor of anthro­ pology at New York University. G r eg or Mur r ay holds the Canada Research Chair on Globa­ lization and Work in the School of Industrial Relations at Université de Montréal, where he is also the director of the Interuniversity Research Centre on Globalization and Work.

Contributors 379 

K e r ry R it t ic h is a professor of law, women and gender studies, and public policy and governance at the University of Toronto. Li or a Sa lt e r is a professor of law, Osgoode Hall Law School, and of Environmental Studies at York University, Toronto. D av id Sc h ne i d e r ma n is a professor of law and political ­science at the Faculty of Law, University of Toronto. Lor n e Sossin is the dean and a professor of law at Osgoode Hall Law School, York University. K at he rine V .W. Sto ne is the Arjay and Frances Miller Distin­ guished Professor of Law at the uc l a School of Law. D av id M. T rub e k is Voss-Bascom Professor of Law and dean of international studies emeritus, University of Wisconsin-Madison. G ill es T rud e au is a professor of labour law at the Université de  Montréal. Er ic T uc k e r is a professor at Osgoode Hall Law School, York University, Toronto, and Distinguished Scholar in Residence at Cleveland-Marshall College of Law, Cleveland State University. Wil lia m T wini ng is Quain Professor of Jurisprudence Emeritus, University College London. Pee r Z umba nse n is a professor of transnational law and the director of the Transnational Law Institute at the Dickson Poon School of Law, King’s College London.

Index

Abel, Albert, 330, 331 Abella, Irving, 14 Aboriginal law, 210 Aboriginal rights, 176–9 adjudicative pluralism, 151 administrative justice, 12, 38, 138, 149–63 administrative law, 11, 14, 17, 69–70, 137–46, 149–63 administrative state, 139–40, 143, 144– 5, 150, 154–62 administrative system, 15, 142, 145, 153 administrative tribunals, 138–9, 144, 149, 150–1, 152 anti-discrimination laws, 21, 238, 303 arbitration, 17, 40, 51, 76, 78–83, 93, 127–8, 170, 173, 175, 178, 179 Arthurs, Leon, 328–9 Arthurs family, ix, 328–9 Atkinson, Anthony, 20 autonomous workers, 97, 102, 250–2. See also dependent contractors Bartkiw, Timothy, 278 Bendel, Michael, 249 Bentham, Jeremy, 142 Bliss, Harvey, 330 Bok, Derek, 335 Bolsa Família, 118 Borovoy, Alan, 327, 335 Brandeis, Louis, 331, 333–4

Brandeis School of Law, 331 Buchanan, Ruth, 204 Canada Labour Code, 94, 98, 234 Canadian Charter. See Charter of Rights and Freedoms Canadian Civil Liberties Association, 335 Canadian Human Rights Act, 101 Canadian Institute of Advanced Research (c i a r ), 343 Canadian labour law, 49–57, 62–4, 101, 125–7, 278, 332, 348 Canadian Labour Law Group, 315 Canadian Nuclear Safety Commission (cnsc), 160, 161–2 Canadian Supreme Court. See Supreme Court of Canada capital mobility, 233, 236–8 Cardozo, Benjamin, 333 Charter Committee on Poverty Issues (c c p i ), 171, 174 Charter of Rights and Freedoms, 51, 53–4, 56, 57, 128, 144, 155, 160, 169 civil rights, 70, 301 Civil Rights movement, 343 civil society, 20, 301 collective agreements, 75–6, 77, 79–80, 93 collective bargaining, 7–8, 9, 14, 20, 21, 24, 49–57, 63–4, 67, 70, 71, 75–6,

382 Index

77, 79–84, 93–4, 96, 103, 105, 116, 118, 128, 152, 234, 236, 239, 245, 248, 249–50, 263, 272, 274–5, 276– 7, 278–9, 307, 308, 357 collective labour relations, 50, 100 collective rights, 23, 63–4, 320–1. See also industrial citizenship comparative labour law, 315 Conference Board of Canada, 274 Constitution Acts (Canada), 171, 172 constitutionalism, 10, 21, 69, 158–9, 169–81 constitutionalization, 13, 21–3, 40, 68, 70, 117, 130 Cosell, Howard, 43 Cox, Archibald, 335 Crampton, Paul, 177–80 Crawford, James, 175–6 Crispo, John, 79 Davies, Paul, 310, 311 Deakin, Simon, 130, 310, 311 decency at work, 96–101, 104, 105–6, 289 de-formalization, 114 de-localization, 236 dependent contractors, 79, 240, 244–53, 319–20 deregulation, 21, 114, 115, 349 Dewey, John, 334 Dicey, Albert Venn (A.V.), 17, 137–46, 150–4, 160–1, 210 Dickson Poon School of Law, xi digital revolution, 65, 95, 236, 352 dispute settlement, 128, 170, 195. See also arbitration domestic labour law regimes, 315 domestic violence, 300. See also gender violence Drache, Daniel, x Dubet, François, 354 Dworkin, Dorothy, 328 Dworkin, Henry, 328 Dyzenhaus, David, 337

economic justice, 315–22 embedded liberalism, 22 Employee Free Choice Act, 51, 53 employee protection, 236 employment law, 3, 50, 53, 55, 110, 115–18, 129–31, 235–6, 246–53, 308, 313 employment relationships, 22, 81–2, 100, 105, 126, 132, 239, 248, 249, 288–9, 292, 308, 309, 312, 318, 321, 353–4 employment standards, 246, 250, 251–2 European Central Bank (e c b ), 356 European common market, 65 European Union, 356 extraterrritorialization, 49 Falconbridge, J.D., 192 Fanon, Frantz, 300 Faubus, Orval, 332 Federal Labour Standards Review, 94, 96, 106 Federation of Law Societies of Canada, 194 financial crisis of 2008–09, 354 financialization, 65, 67 Finkelman, Jacob, 335 flexibility, 22, 66, 95, 102, 117, 251 flexibilization, 356 flexicurity, 98, 99–100, 356 Fordist era, 352 formality, 109–20 formalization, 7, 109–20 Frankfurt School, 16 Frankfurter, Felix, 332–3 Fraser, Nancy, 293 Freedland, Mark, 310–11 Freeman, Richard, 237 Friedland, Martin, x Frye, Northrop, 43 Fuller, Lon, 336 gender violence, 298–305

Index 383

General Agreement on Tariffs and Trade (gatt), 345 German Constitutional Court, 174 Glendon College, 330–1 global economy, 42, 98, 170, 235, 344, 349 Global North, 24, 112, 289, 292, 347 Global South, 110–12, 289, 292, 347 global value chain, 27, 288 globalization, 3, 4, 10, 13, 14, 17–19, 22–3, 42, 44, 53, 64–5, 84, 95, 126, 127, 150, 157, 158, 170, 180, 190, 195–6, 208, 209, 211, 218–25, 233–4, 236–7, 273, 276, 293, 307, 341–9, 352–5, 356, 359; of the mind, 19, 42–4, 66–7, 70, 196, 224, 234, 342, 345 Gorz, André, 12 governance, 14, 15–16, 18, 20, 22, 54–5, 65, 69, 110, 111, 112, 117, 155, 196, 200, 208–9, 211, 238, 248, 301, 344, 346 Grafstein, Jerry, 330 Grant, George, 13 Greene, Nathan, 332 Hart, H.L.A., 210 Harvard University, 5–6, 330 Hayek, Friedrich A. von, 18, 195 Hegel, Georg W.F., 16 Hepple, Bob, 274 Hillel, 6 Himelfarb, Alex, 274 Hirschman, Albert, 19 Hogg, Peter, 140–2, 144 Holmes, Oliver Wendell, 333–4, 336–7 Howe, John, 130 human rights, 14, 23, 64, 97, 100–1, 105, 155, 158–9, 239, 298–305, 346; law, 101, 301–4; system, 300–3 hyper-liberalism, 3 industrial activism, 8 industrial citizenship, 12, 62–72, 79–80, 93–4, 104–6, 128–9, 273

industrial conflict, 10, 75, 77, 80 industrial democracy, 7–10, 20 industrial pluralism, 8–9, 26, 64, 69, 75–86, 307, 352–3 industrial relations system, 6–8, 10, 20, 26, 75–6, 84, 353 inequality, 3, 12, 19, 26–7, 66, 71–2, 237–8, 240, 247, 263–4, 271–80, 291, 298–305, 348, 355, 359 informal work, 109–20 Innis, Harold, 13 International Centre for the Settlement of Investment Disputes (i c s i d ), 170 International Labour Organization (i l o), 97, 111, 274, 276–7 international law, 50, 51, 101, 173–5, 178, 208–9, 211, 344–5. See also transnational law International Monetary Fund (i m f ), 274, 276–7, 356 investment treaties, 169–81. See also North American Free Trade Agreement James, William, 334 Jenson, Jane, 68 Jewish: organizations, 6, 327, 328–9; quota system, 6 judicial review, 141–2, 152–4, 160–1 Judt, Tony, 274 Kahn-Freund, Otto, 308, 312 Kanbur, Ravi, 114 Kennedy, W.P.M., 334, 335, 337 Keynes, John Maynard, 42, 195, 275 Kilgour, David, 330 Krugman, Paul, 347–8 Kübler-Ross, Elisabeth, 52 labour, organized, 49, 52, 55, 57, 67 labour costs, 234–6 labour economy, 129 labour law, 6, 10–16, 19, 23–7, 38–41, 49–57, 62–4, 70–1, 76, 84–5, 96–7, 101–4, 109–20, 124–32, 233–41,

384 Index

244–5, 247–8, 253, 262–4, 271–80, 286–94, 299, 307–13, 315–22, 328, 332, 335, 342, 344–5, 346–7, 348, 349, 351–2, 354–8 labour law regimes, 49–50, 315, 342, 344 labour market regulation, 19, 41, 130– 1, 280, 309–12, 345, 353, 356–8 labour markets, 22, 23, 27, 41, 54, 68, 70, 76, 79, 95, 99, 102, 105, 109–20, 126, 128, 130, 238, 258–65, 272, 279, 280, 308–13, 320, 352, 354, 356–8 labour mobilization, 317 labour relations, 3, 7–8, 26–7, 49, 50, 78, 79, 100, 152, 316, 320, 352–8; system, 6, 7, 18, 353 labour rights, 14, 21, 50–1, 64, 69–70, 84–5, 273, 313 labour standards, 13, 23, 68, 93–106, 110, 234, 273 labour unions. See trade unions Labrie, Eugene, 330 Laclau, Ernesto, 25 laissez-faire capitalism, 7, 275 Lajoie, Andrée, 172–3 Langille, Brian, 130 Laskin, Bora, 5, 39, 77, 78, 81–3, 192– 4, 308, 312, 327, 329, 330–1, 332–5 Law and Society Association, 301, 342 law reform, xi, 50, 51, 53, 197, 278–9 law schools, 189–97, 199, 203–4, 211– 13, 218–25, 329–32, 336, 343. See also legal education Lawrence, Sonia, 176 Lawyers Club of Toronto, 329 legal culture, 16, 24, 26, 302 legal education, xi, 5, 12, 38, 42–3, 189–97, 199–213, 218–25, 329–30 legal pluralism, 11, 13, 14–18, 37–45, 127, 138, 140, 149, 151, 161, 204–7, 212, 288, 336, 351 legal scholarship, 6–7, 18, 192, 195, 199–213, 219, 301, 313, 334, 343, 352

legal systems, 16–17, 100, 139–40, 150–2, 171–4, 193, 207–8, 220–1, 246, 293, 301, 344 legality, 43–4, 78, 143, 145–6, 172; neo-liberal, 169, 180 legalization: of arbitration process, 8, 40; of the mind, 43–4 liberalization: of trade, 65, 95, 111, 349 London School of Economics, 137 Lord, Bernard, 176 Lord Reading Law Club, 328–9 Lugard, Lord, 110 Luhmann, Niklas, 210 MacDonald, Roderick, 204 Macklem, Patrick, 176 Marshall, T.H., 63, 70 Marx, Karl, 300 Marxist theory, 301 mass-consumer culture, 9 Massey College, University of Toronto, x McCann, Michael, 301 Micklethwait, John, 65 migrant work, 130, 287, 292 Milanovic, Branko, 347 Milner, Jim, 330, 334 minimum wage, 97, 236, 246, 248, 249 Misak, Cheryl, 334 Mitchell, Richard, 130 Moran, Mayo, 156 Mullan, David, 159 Mulroney, Brian, 161, 275 multi-national corporations (m nc s) 65, 66–7 Mustard, Fraser, 343 National Industrial Recovery Act, 319 National Labor Relations Act (n l r a ). See Wagner Act National Labor Relations Board (nl r b ), 50 neo-liberalism, 7, 10, 13, 53, 66–9, 84–5, 127, 150, 154, 157–8, 169, 181, 190, 195, 223, 299, 342, 347, 349

Index 385

“New Economy,” 13, 27, 64, 69, 84, 94–5, 96–9, 104, 106, 126, 128, 195, 233, 239, 288, 354 “New Governance,” 55 “New Legality,” 64, 68, 128 Nixon, Richard, 6 non-standard employment relationships, 95, 105, 253, 258, 262–3, 264 normative regimes, 158, 199, 204–5, 207 North American Free Trade Agreement (nafta), 65, 127, 171–8 Occupy movements, 319 Ontario Court of Appeal, 78, 82, 172, 174, 335 Ontario Labour Relations Board, 335 Organisation for Economic Co-operation and Development (oecd), 274, 275 Osgoode Hall Law School, York University, x, xi, 5, 77, 137, 177, 192, 199–213, 328, 329–30, 335

246–52, 258–65, 280, 287, 309–13, 342, 345, 352, 353–4, 356–8 regulatory regimes, 25, 207, 209, 262 Rodell, Fred, 37 rule of law, 15, 24, 25, 38, 43–5, 111, 115, 117, 138–9, 143, 145, 149–63, 172, 190, 205, 235, 279–80, 289, 298, 301

patent unreasonableness, 153–4 Pentland, Charles, 14 Pesando, James, 260 Piketty, Thomas, 237, 359 Piore, Michael, 9 Polanyi, Karl, 86 Posner, Richard, 194, 337 Pound, Roscoe, 333–4, 336 precariat, 354 precarity, 23, 309, 354–5 privatization, 3, 21, 161, 349 Public Service Labour Relations Board, 152

Sabel, Charles, 9 Saint-Exupéry, Antoine de, 26 Santos, Alvaro, 290 Schmitt, Carl, 337 Scott, F.R., 14 Segal, Hugh, x self-regulation: corporate, 85; state, 155 sex discrimination, 303 Sigma Alpha Mu, 327 Sinzheimer, Hugo, 274, 308, 312 social citizenship, 64, 67–8, 99 social conflict, 18, 204, 336 social embeddedness, 86 social justice, 5, 44, 56, 109, 171, 190, 195, 200, 207, 211, 239, 240–1, 289, 293, 298–305, 311, 316, 355 social law, 310–11 social protection, 68, 118 social safety net, 63, 316, 342 social welfare, 41, 130, 309 Sorarajah, Muthucumaraswamy, 175 Sossin, Lorne, x standard employment relationship/ model, 263, 289, 292, 307, 309. See also non-standard employment Stiglitz, Joseph, 276 Supreme Court of Canada, 51, 53–4, 82, 84, 152, 154, 155, 174, 330

Reagan, Ronald, 10, 275 regionalization, 65 regulation, 11, 14, 16, 22–3, 24, 40, 41, 55–6, 68, 71, 85, 95, 98, 100–1, 111, 115–20, 130–1, 154–5, 157, 158, 162, 206–10, 235–6, 238, 239, 240,

Taft-Hartley Act, 52 Taggart, Michael, 137–8 Teubner, Gunther, 210 Thatcher, Margaret, 10, 275 Third World Approaches to International Law (t wa i l ), 208

386 Index

Thomas, Christopher, 177–9 Thompson, Edward P., 12, 15, 25, 39, 44 trade unionism, 70, 71, 354 trade unions, 8–9, 12, 19, 49–57, 67, 75–86, 99, 103, 109, 129, 137, 171– 2, 209, 237, 238, 239, 240, 249, 263, 272, 274, 276–9, 312, 316, 317, 328, 346, 352–5, 358, 359 transnational law: general, 208, 211; labour law, 286–94, 341–9, 355. See also globalization; neo-liberalism Trudeau, Pierre, 9 Truth and Reconciliation Commission, 163 Tubman, Harriet, 288, 292 Turner, John, 260 union representation, 239 unions. See trade unions United Nations, 209 United Negro Improvement Association, 287 University of Toronto Law School, 329–31, 333 Van Harten, Gus, 177–9 violence against women, 298–305 wagenet. See Work And Global Economy Network Wagner Act (National Labor Relations Act), 7, 49, 52–3, 71, 77, 271, 274, 278, 279

Walker, Neil, 24 Watergate break-in, 6 Wedderburn, Bill, 12 welfare state, 7, 8, 18, 23, 63, 68, 70, 75–86, 154, 161, 195, 298, 342, 353 Weston, Abe, 330 Wilkinson, Frank, 130, 310, 311 Willis, John, 157, 192, 193, 329 Wilson, Bertha, 152 “without-ness,” 125–6 Wittgenstein, Ludwig, 42, 43 women’s rights, 298–305 Woodridge, Adrian, 65 Work And Global Economy Network (wage n e t ), 344–5, 346–7 working-hour regulations, 247 workplace bargaining, 238. See also trade unions workplace legal protection, 235, 236 workplace regulation, 235, 357 World Bank, 159 World Economic Forum, 235, 274 World Trade Organization (w to), 95, 344–5 Wright, Cecil “Caesar,” 5, 192, 193, 329, 330, 334 York University, xi, 5, 76, 84, 327, 330, 345. See also Osgoode Hall Zengotita, Thomas de, 240 Zumbansen, Peer, xi, 292