The struggles over employment laws that have rocked France and Germany over the past year have been largely defensive. Yet labour-law reform, in a positive sense, is an important issue which deserves to be addressed on its own terms: how might the law best adapt to objective changes in work practices brought about by new techniques? The model of wage labour that held sway during the industrial era—in which a worker abdicates a degree of freedom in exchange for a certain amount of security—is no longer generally applicable today. Much recent scholarship has concurred that the question involves not simply the codification of the individual worker’s rights but rather the creation of professional conditions for people such that, over the long term, their capabilities and economic needs are sufficiently assured to allow them to take initiatives and shoulder responsibilities.footnote1 The key terms within this perspective are not jobs, subordination and social security, but work (understood in all its forms, not just as wage labour), professional skills and economic security.
The labour-market reforms imposed in most European countries have instead remained locked inside the old model, and restricted themselves to worsening its terms for those on the bottom rung. Such policies proceed from the (false) assumption that existing labour legislation is the principal obstacle to full employment and should be dismantled to improve companies’ competitiveness. A consistent feature of the reforms carried out over the last thirty years has been their attack on the flimsy safeguards to which the weakest still cling. Whether in the name of workfare, job-sharing or of flexibilization, the common denominator has been the notion that certain statutory benefits (full-time work, decent pay, protection against dismissal) are to blame for the difficulties experienced by certain sectors of the labour force in finding work. Given the more or less ‘social-market’ temper of the times, this has meant either reducing benefits, or else shifting part of their cost onto the state or social security.
In continental Europe, the reversal of roles between the state, private enterprise and finance has been most apparent in employment law. Where once the state laid down the broad lines of a national economic policy which the big firms carried out, and which financiers were expected to serve, today financial objectives dictate the actions of companies, while the costs of the human sacrifices involved are borne by the state—either directly, by funding employment incentives, or indirectly, by having to deal with the consequences of poverty, violence and insecurity. As a result, protections are cut back where they are most necessary, while they continue to be heaped upon those at the top of the professional ladder. Regularly denounced, this double standard has only grown more pronounced, especially in terms of those collective rights—to unionization, to strike action—whose effectiveness tends to be proportionate to job security; those who have most need of such rights are completely bereft of them.footnote2 Employment law thus provides a perfect example of the Matthew Effect: ‘For whosoever hath, to him shall be given, and he shall have more abundance; but whosoever hath not, from him shall be taken away even that he hath.’footnote3
The Contrat Première Embauche—‘First Job Contract’—which the French government struggled to impose from January to April 2006 was almost a caricature of this approach. In the name of fighting youth unemployment, it allowed employers to sack young workers without any explanation during their first two years in the job. Dreamed up by a few economic advisers to the Prime Minister without even consulting the jurists of the Ministry of Employment, pushed through as a ‘matter of urgency’ without any negotiations with the trade unions, or even any real parliamentary debate, the measure displayed virtually every defect that has marred French labour-law reform for the past quarter of a century. It was based on highly relative international comparisons, in which levels of youth unemployment are calculated just on the basis of those in the labour market, rather than the total number, including students (all else being equal, this method automatically raises levels in countries with a higher average length of education). It deployed a confused concept of age group, as a sociological category—all those under 26 being lumped together, whether rich or poor, uneducated or graduates from some elite college. It offered a windfall to employers already seeking to make redundancies. It had the perverse effect of making it harder for those over 26 to get work. Finally, it did nothing to solve the real problem facing most young people, which is not finding work—statistics show that they remain unemployed for far less time than older cohorts—but finding stable work: turnover is much higher in this age range, and without established employment it is difficult to obtain credit or accommodation.
In adding yet another aspect of job insecurity to what is already a long list—interim employment, short-term contracts, etc—the cpe might have been enacted almost unnoticed if it had not had the effect of juridically stigmatizing, so to speak, youth as a whole. As a result, it could be summarized as something very simple to understand although difficult for its backers to admit: the measure enshrined the right of employers to sack young workers without having to give a reason why. To a generation particularly sensitive about questions of respect, such a message symbolized the most unacceptable face of labour-market reform: that which, over and above the economic effects, aimed at the moral degradation of workers, at treating them as things.footnote4
The dismantling of labour laws is presented as the unavoidable outcome of economic globalization. But the free circulation of capital and goods is not a fact decreed by nature. It is the product of political decisions, encoded in commercial law. Over the past twenty years, international trade agreements have increasingly erased the territorial limits formerly assigned to markets. In what follows, I will argue that this legal configuration of markets has an infinitely greater impact upon employment than that of labour legislation. Discarding the juridical principles of the postwar period, national legislative models are today treated as so many products in competition with each other on the world market of norms. Devoid of any qualitative framework, this normative Darwinism locks both public policy and economic life into a self-referential downward spiral.
Contrary to the dogma of the labour-market deregulators, unemployment levels in any given country depend far more on the organization of international trade and on company law than on local labour legislation. The notion that a reform of the labour law will create jobs is an illusion: the complete abrogation of all regulatory norms applicable to wage labour would have scant impact on unemployment. Witness the situation of the self-employed, excluded from wage-labour regulations, but subject to those of international trade. A typical instance of self-employment is the food and agriculture sector, which switched almost overnight from the ‘archaic’ pattern of peasant smallholdings to an ultramodern model, integrated within international production and distribution networks. A part of this sector lives off the Common Agricultural Policy (another neglected aspect of employment law), but other farm businesses receive no subsidy at all. This is the case, for example, with the battery-farming of poultry, which has been intensively developed since the early 1980s. The method is industrial (25 birds per square metre, massive reliance on antibiotics, etc), the product is tasteless, and the pollution is huge (ground-water poisoned by nitrates), but the—apparent—costs are low. The system is organized into networks on the basis of bilateral contracts signed between the food giants that dominate the world market and the breeders whom they control, from one end of the production chain to the other. This is the sort of ‘social paradise’ of which the advocates of labour deregulation dream: no minimum wage, no limit to the working day, no right to strike, no collective agreements.