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2 See, further, Eriksen, Erik Oddvar & John Erik. Fossum, Europe in Search of Legitimacy: Strategies of Legitimation Assessed, 25 International Political Science Review 435 (2004).Google Scholar

3 Eriksen and Fossum, supra note 1, 4, and further, at 8: “The public sphere located in civil society holds a unique position, because this is where everyone has the opportunity to participate in the discussion about how common affairs should be attended to. It signifies that equal citizens assemble into a public, which is constituted by a set of civil and political rights and liberties, and set their own agenda through communication” (emphasis added).Google Scholar

4 This question is pitched within the RECON project by Work Package 9, Global Transnationalisation and Democratisation Compared, see further http://www.reconproject.eu/projectweb/portalproject/ResearchObjectivesWP9.html.Google Scholar

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9 Habermas, Jürgen, Paradigms of Law, 17 Cardozo Law Review 771, (1996).Google Scholar

10 As discussed further, in interview, by Iris Marion Young and Jane Mansbridge: Fung, Archon, Deliberation's Darker Side: A Discussion with Iris Marion Young and Jane Mansbridge, 93 National Civic Review 47 (2004).Google Scholar

11 Saskia Sassen, Territory, Authority, Rights. From Medieval to Global Assemblages (2006).Google Scholar

12 The Economy as Polity: The Political Constitution of Contemporary Capitalism (Christian Joerges, Bo Stråth and Peter Wagner eds., 2005) marks an exception.Google Scholar

13 See Block, Fred, Towards a New Understanding of Economic Modernity, in The Economy as a Polity: The Political Constitution of Contemporary Capitalism, 3, 13–14 (Christian Joerges, Bo Stråth & Peter Wagner eds., 2005) for discussion of perceptions of historical complementarities between market expansion and popular “protective counter-movements”, despite superficially contradictory objectives, in the works of Karl Polanyi, Karl Marx and E.P. Thomson.Google Scholar

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15 See Nussbaum, Martha, Capabilities as Fundamental Entitlements: Sen and Global Justice, 9 Feminist Economics 33 (2003).Google Scholar

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19 See Habermas, Jürgen, Why Europe Needs a Constitution, 11 New Left Review, 5, 6 (2001) (my emphasis).Google Scholar

20 See Collins, Hugh, Is There a Third Way in Labor Law?, in Labor Law in an Era of Globalization. Transformative Practices and Possibilities, 449, (Joanne Conaghan, Richard Michael Fischl & Karl Klare eds., 2002).Google Scholar

21 See Estlund, Cynthia, Rebuilding the law of the workplace in an era of self-regulation, 105 Columbia Law Review, 319 (2005).Google Scholar

22 See Deakin, Simon, The Many Futures of the Contract of Employment, and Paddy Ireland, From Amelioration to Transformation: Capitalism, the Market and Corporate Reform, both in Labor Law in an Era of Globalization. Transformative Practices and Possibilities, respectively 177, 197 (Joanne Conaghan, Richard Michael Fischl & Karl Klare eds., 2002).Google Scholar

23 See Supiot, Alain, The transformation of work and the future of labor law in Europe: A multidisciplinary perspective, 138 International Labor Review 31 (1999) and Alain Supiot, Au-dela de l'emploi: Transformations du travail et l'avenir du droit du travail en Europe. Rapport pour la Commission Européenne (1999).Google Scholar

24 In 1972, Kahn-Freund observed “the entire basis of our thinking on collective labor relations and collective labor law is destroyed”, (Otto Kahn-Freund, A Lawyer's Reflections on Multinational Corporations, Journal of Industrial Relations (Aus.), 351 (1972).Google Scholar

25 See D'Antona, Massimo, Diritto del Lavoro di Fine Secolo: Una Crisi di Identita?, 48 Rivista Giuridica del Lavoro e della Previdenza Sociale 31 (1998); see, also, Collins, Hugh, The Productive Disintegration of Labor Law, 26 Industrial Law Journal 295 (1997).Google Scholar

26 See Klare, Karl, The Horizons of Transformative Labor and Employment Law, in Labor Law in an Era of Globalization. Transformative Practices and Possibilities, 3 (Joanne Conaghan, Richard Michael Fischl & Karl Klare eds., 2002); see, also, Supiot, supra note 23.Google Scholar

27 For example, “…[the] social and political world classically imagined by labor law is disappearing, gradually in some places, quite abruptly in others”, so that, “labor law must be invented”: see, also, Klare, , supra note 26, 4.Google Scholar

28 Id., 5; see, generally, Manuel Castells, The Information Age: The Rise of the Network Society Vol. I (2000).Google Scholar

29 See, for example, Lehoczky, Csilla Kollonay, Ways and Effects of Deconstructing Protection in the Post-socialist New Member States - Based on Hungarian Experience, in Boundaries and Frontiers of Labor Law. Goals and Means in the Regulation of Work, 221 (Guy Davidov & Brian Langille eds., 2006). D'Antona (supra note 25, 34–5, 38) highlights, in this context, the marginalization of worker interests and labor law within national constitutions.Google Scholar

30 See, for example, Harry Arthurs, “Private Ordering and Workers’ Rights in the Global Economy: Corporate Codes of Conduct as a Regime of Labor Market Regulation”, in Labor Law in an Era of Globalization. Transformative Practices and Possibilities, 471 (Joanne Conaghan, Richard Michael Fischl & Karl Klare eds., 2002). See, also, Habermas, , supra note 19, 11–12.Google Scholar

31 For example, highlighting the 1980s “global debt crisis” of the 1980s as the platform for definitive insertion into the institutional frameworks of developing countries of neo-liberal trade and economic policies, via IFI-imposed structural adjustment packages, including labor market flexibility agenda; secondly, via trade-related treaties concluded with developed countries. Rittich highlights labor rights and labor market flexibility as “distinct normative visions with respect to the structure and operation of labo[u]r markets and the location of authority and control in the workplace…”: Kerry Rittich, Core Labor Rights and Labor Market Flexibility: Two Paths Entwined?, in Labor Law Beyond Borders: ADR and the Internationalization of Labor Dispute Settlement, 161 (The International Bureau of the Permanent Court of Arbitration, 2003).Google Scholar

32 See, for example Alston, Philip, Labor Rights Provisions in US Trade Law: ‘Aggressive Unilateralism'?, 15 Human Rights Quarterly 1 (1993), for early critique of the NAFTA regime's impact on national labor rights.Google Scholar

33 See, for example, David Montgomery, Labor Rights and Human Rights. A Historical Perspective, in Human Rights, Labor Rights, and International Trade, 15 (Lance A. Compa & Stephen F. Diamond eds., 1996); see, also, Rittich, , supra note 31.Google Scholar

34 See, generally, Richard Sennett, The Corrosion of Character: The Personal Consequences of Work in the New Capitalism (1998).Google Scholar

35 See Rittich, Kerry, Feminization and Contingency: Regulating the Stakes of Work for Women, in Labor Law in an Era of Globalization. Transformative Practices and Possibilities, 117 (Joanne Conaghan, Richard Michael Fischl & Karl Klare eds., 2002).Google Scholar

36 See Judy Fudge and Rosemary Owens, Precarious Work, Women, and the New Economy: The Challenge to Legal Norms, in Precarious Work, Women, and the New Economy: The Challenge to Legal Norms, 3 (Judy Fudge & Rosemary Owens eds., 2006).Google Scholar

37 See Standing, Guy, Global Feminization Through Flexible Labor, 17 World Development 1077 (1989), and Standing, Guy, Global Feminization through Flexible Labor: A Theme Revisited, 27 World Development 583 (1999). According to recent studies, migrant workers number 80–100 million: about half of these workers are women, amongst whom domestic work is the most common occupation: ILO, About MIGRANT http://www.ilo.org/public/english/protection/migrant/about/index.htm, Preventing Discrimination, Exploitation and Abuse of Women Migrant Workers: An Information Guide-Booklet 1: Why the Focus on Women International Migrant Workers, 5 (2003).Google Scholar

38 See Rittich, , supra note 35.Google Scholar

39 See Fudge and Owens, supra note 36.Google Scholar

40 See Rittich, , supra note 35, 128. Appreciation of the interdependence of market and non-market activities, risks and rewards is mirrored by international human rights law discourses’ notions of “interdependence and indivisibility” of human rights across the categories of civil and political, social and economic human rights (see, for example, Beijing Declaration of the UN's Fourth World Conference on Women, UN Doc. A/CONF.177/20 Annex I (1995)).Google Scholar

41 Rittich, , supra note 35, 123.Google Scholar

42 For example, in socialist states, trade unions were often integrated into totalitarian systems of rule; as a result, they were generally unable to exert strong influence over post-Communist labor constitutions. In some post-colonial states, by contrast, trade unions functioned as organs of civil resistance to military rule; elsewhere, as quasi-official “workers” organizations”, their collusion won industry-specific protectionist intervention within directed economies. In some states, such as China, free trade unions do not yet exist.Google Scholar

43 See, for example, Fischl, Richard Michael, Organizing Low-Wage Workers in the US: Some Lessons from the Miami Janitors Campaign, mimeo; and Paul Benjamin, Beyond the Boundaries: Prospects for Expanding Labor Market Regulation, in Boundaries and Frontiers of Labor Law. Goals and Means in the Regulation of Work, 181 (Davidov & Langille eds., 2006), with regard to South Africa.Google Scholar

44 See Arthurs, , supra note 30.Google Scholar

45 See D'Antona, supra note 25.Google Scholar

46 See, now classically, Streeck, Wolfgang, Industrial citizenship under regime competition: the case of the European works councils, 4 Journal of European Public Policy, 643 (1997); and, also, Barnard, Catherine, Social Dumping and the Race to the Bottom: Some Lessons for the European Union from Delaware, 25 European Law Review 57 (2000), and Deakin, Simon, Legal Diversity and Regulatory Competition: Which Model for Europe?, 12 European Law Journal 440 (2006).Google Scholar

47 See Fischl, , supra note 43, 3. Practices such as giving priority to full-time workers for promotion and job security tend disadvantage of female workers.Google Scholar

48 See Rittich, , supra note 31, 118.Google Scholar

49 See Ontiveros, Maria, A New Course for Labor Unions: Identity-Based Organizing as a Response to Globalization, in Labor Law in an Era of Globalization. Transformative Practices and Possibilities, 417 (Joanne Conaghan, Richard Michael Fischl & Karl Klare eds., 2002), observes, in addition to sex discrimination, female workers’ ongoing subordination via family roles and expectations strongly influenced by patriarchal social structures. On the other hand, Fischl (supra note 43) describes migrant workers as geographically and temporally dispersed, racially and culturally heterogeneous, economically disempowered and precarious, due to irregular immigration status.Google Scholar

50 See Deakin, Simon, The Many Futures of the Contract of Employment, in Labor Law in an Era of Globalization. Transformative Practices and Possibilities, 177, 194 (Joanne Conaghan, Richard Michael Fischl & Karl Klare eds., 2002) frames this as a shift in the role of trade unions, from that of co-regulator, to monitor and enforcer, ex post facto, of labor-related legal norms.Google Scholar

51 For example, the US Service Employees International Union was established in the 1990s as a breakaway from AFL-CIO, over the latter's “perceived failure to devote sufficient resources and ingenuity to organizing new workers”: Fischl, supra note 43, 1.Google Scholar

52 See Ontiveros, supra note 49. Fischl, supra note 43, illustrates with reference to site security jobs, which cannot be outsourced, and are already sub-contracted.Google Scholar

53 Ontiveros, supra note 49, 417 defines identity-based organizing as “a way of organizing the whole identity of a human being, not just his or her workplace identity”, with reference to personal identity factors including “race, gender, ethnicity, national origin, citizenship status, community, sexual orientation, and religion”, as well as class identity factors, these being “job, social class, career, income and wealth”.Google Scholar

54 Fischl, supra note 43, 5, even refers to a “law avoidance strategy” by unions in the US, for example, substituting organized ballots with direct action, including “corporate campaigns” seeking to provoke public or contractor pressure on targeted companies who may not be the legal employer, but who may be more visible, locally or nationally, and sensitive to publicity. See Ontiveros, supra note 49, 418, relates avoidance of “traditional administrative process used by unions in the USA”, on grounds of ineffectiveness. Non-legal action is highlighted as especially important where workers, despite large numbers and longevity of employment, are irregular. For countless further examples of extra-legal organization, see Business and Human Rights Resource Centre (http://www.business-humanrights.org/Home).Google Scholar

55 Reflecting “specific affronts to human dignity encountered by immigrant workers, as immigrants and workers”: See Ontiveros, supra note 49, 418, with reference to the Los Angeles Justice for Janitors campaign undertaken by the Service Employees International Union (SEIU).Google Scholar

56 Ontiveros, supra note 49, 421, illustrates with reference to Teamsters Local 890's Citizenship Project in California, addressed to the Latino community (http://www.newcitizen.org). This contrasts with past constructions of “countervailing workers’ power” which focused on negotiation within the frame of the long-term contract of employment to the extent that “goals of job enrichment and self-realization” during work performance were often overlooked: Ireland, supra note 22, 198.Google Scholar

57 For example, the campaign for an ILO Convention relating to the rights of domestic workers, see, further, http://communicatinglaborrights.wordpress.com/2008/03/22/domestic-workers-step-towards-an-ilo-international-convention/.Google Scholar

58 Ontiveros, supra note 49, 420–421, cites AFL-CIO's 2000 reversal of its “traditional nativist approach to immigration”.Google Scholar

59 Klare, supra note 26, 13, suggests the assumption of the employment relationship as the “essential substrate of social organization” is no longer valid.Google Scholar

60 According to Deakin, with reference to regulation, private and social insurance, “…the enterprise became the main conduit for the wider process of risk-sharing at which the laws were aimed”: supra note 50, 184.Google Scholar

61 Id., 182–4, citing Coase, Ronald, The Nature of the Firm 4 Economica (NS) 386 (1951); Simon, Herbert, A Formal Theory of the Employment Relation, 19 Econometrica 293 (1985), and Oliver Williamson, The Economic Institutions of Capitalism (1985), Chapter 9.Google Scholar

62 Klare, supra note 26, 12–13, suggests that according to the ideal of typical employment, workers “leave strategic decision-making and risk to the employer in return for a modicum of security, fair-play and (theoretically) a family wage”; employees, during employment, “are and should be command-followers”. Supiot refers to the trading of “economic dependence” for “social protection”: Alain Supiot, Au-dela de l'emploi: Transformations du travail et l'avenir du droit du travail en Europe. Rapport pour la Commission Européenne (1999), 10.Google Scholar

63 See Deakin, , supra note 50, 178.Google Scholar

64 See Eriksen and Fossum, supra note 1. See, also, Zürn, Michael, The State in the Post-National Constellation - Societal Denationalization and Multi-Level Governance, Arena Working Papers WP 99/35 (1999), and Sassen, , supra note 11.Google Scholar

65 See Thomas L. Friedman, The World is Flat (2005); Charles F. Sabel, Learning by Monitoring: The Institutions of Economic Development, in The Handbook of Economic Sociology (Neil J. Smelser and Richard Swedberg eds., 1994).Google Scholar

66 For example, with the growth of notional self-employment.Google Scholar

67 See Deakin, , supra note 50, 178.Google Scholar

68 See Deakin, , supra note 50, 179.Google Scholar

69 See Deakin, , supra note 50, 185–6.Google Scholar

70 Deakin, , supra note 50, 181, in this context, he refers to the classical employment contract as a “relational contract”, in which market exchange is enmeshed by “political and social processes of the relation, internal and external” (citing MacNeil, Ian R., The Many Futures of Contracts, 47 Southern California Law Review 691 (1974)).Google Scholar

71 See Mayntz's observation of the “hermeneutic and interpretive” approach of legal studies, in general, with regard to globalization (Mayntz, supra note 5).Google Scholar

72 Michael Zürn's expression: supra note 64.Google Scholar

73 See Collins, Hugh, Is There a Third Way in Labor Law? in Labor Law in an Era of Globalization. Transformative Practices and Possibilities, 449 (Joanne Conaghan, Richard Michael Fischl & Karl Klare eds., 2002). Its immediate pretext is Third Way politics and its “reconfiguration” of employment standards (see, for example, Anthony Giddens, The Third Way: The Renewal of Social Democracy (1998). Since these are interpreted as a response to the re-contextualization of national economies and politics within global economic integration it is, however, suggested as an account of potentially broader, perhaps even general, application. Interestingly while Collins (id., 450) suggests these trends contradict “aspects of accepted international norms as embodied in the Conventions of the ILO”, there would now appear to be a degree of convergence between ILO and Third Way agenda: see, for example, ILO/Peter Auer, In search of optimal labor market institutions, Economic and Labor Market Paper 2007/3 (2003), concluding active labor market policies as “optimal labor market institutions” for the contemporary economic setting for developed countries.Google Scholar

74 Collins, , supra note 73, 452–453.Google Scholar

75 Id., 451.Google Scholar

76 The suggestion is that flexibility discourages the “adoption of mandatory and inalienable rights”, which might be inefficient, or obstruct steps to employer-worker co-operation.Google Scholar

77 Collins, , supra note 73, 455.Google Scholar

78 Id., 457.Google Scholar

79 See Scheuerman, William E., Democratic Experimentalism or Capitalist Synchronization? Critical Reflections on Directly-Deliberative Polyarchy, 17 Canadian Journal of Law and Jurisprudence 101 (2004).Google Scholar

80 Collins attributes to Schanze the “symbiotic contract” concept, said to contain the “seeds of a radically new approach to labor law”: Erich Schanze, “Symbiotic Contracts: Exploring Long-Term Agency Structures between Contract and Corporation”, in Franchising and the Law (Christian Joerges ed., 1991).Google Scholar

81 “New Regulatory Method” seeks “…to provoke the parties themselves to re-engineer their own economic and social relations through partnerships and contractual agreements”; and aims at “…inducing employers to revise the internal rules of their organization” by describing “explicitly the kinds of procedures required, though leaving the detail to employers to determine, and to provide incentives to adopt these procedures”, for example, whistle-blower laws, European Works Council Directive, EC Directive 94/45 of 22 September 1994, OJ 1994 L254, 64464: Collins, supra note 73, 468.Google Scholar

82 Id., 463. Collins continues: “If the employer structures its procedures and rules that comprise the organization around respect for fairness, the bureaucracy is likely to carry out these standing orders… [R]eliance upon background legal rights enforceable in an employment tribunal is likely to produce little sense of commitment towards the employer…In order to enhance the credibility of the employer's commitment, the task of legal regulation is not primarily to grant employees legal entitlements that may be enforced by way of compensation in tribunals, but rather to re-engineer the internal rules of organizations so that they present credible commitments towards fairness.”Google Scholar

83 Echoing and implicitly rejecting Kahn-Freund's “collective laissez-faire“.Google Scholar

84 It is claimed to aim at inducing “voluntary arrangements for consultation and sharing of information” (Collins, supra note 73, 461).Google Scholar

85 For example, UK Employment Relations Act 1999 incentivizes adoption of partnerships by establishing the possibility of imposed union recognition and collective bargaining where employers decline to introduce own arrangements for consultation and participation.Google Scholar

86 Collins, supra note 73, 465, suggests taking this approach to equal opportunities “…would do more than any legal measures to achieve a change in the culture of management practices and a reduction in discrimination”.Google Scholar

87 Some rights would be categorized as alienable by individuals, others only following conclusion of a collective agreement or after a procedurally fair settlement; and others not at all, along lines shown by the UK Working Time Regulations 1998.Google Scholar

88 The New Deal model's principal elements are identified as: i) the 1935 National Labor Relations Act which, in the perspective of industrial democracy, is also described as a “…'constitution’ of the private sector workplace – a framework for self-governance supported by a set of individual and group rights, and an administrative enforcement scheme”, and based on a vision of workers as citizens and the workplace as a site of self-determination; ii) the 1938 Fair Labor Standards Act, establishing enforcement duties on the Federal Department of Labor, as well as universal minimum statutory protections (for example, minimum wage and overtime premia). Social security legislation setting minimum provisions on retirement security, and subsequent health and safety legislation, by contrast, are described as conferring rights without participation, rendering employees “passive beneficiaries of the government's protection”: Cynthia Estlund, Rebuilding the law of the workplace in an era of self-regulation, 105 Columbia Law Review 319, 326 (2005).Google Scholar

89 Here the Occupational Health and Safety Act 1970 (“OSHA”), targeted by Bardach and Kagan's epochal critique of “regulatory unreasonableness” is taken as paradigmatic: Eugene Bardach & Robert A. Kagan, Going by the book: The problem of regulatory unreasonableness (1982).Google Scholar

90 Referring principally to the Civil Rights Act 1964, Pub L. No.88-352, § 703, 78 Stat. 241, 255 (codified as amended at 42 USC § 2000e-2 (2000).Google Scholar

91 Estlund, supra note 88, 319, supporting this claim with reference to the Federal Sentencing Guidelines which, for example, allow mitigation for firms “[i]f the offense occurred despite an effective program to prevent and detect violations of the law, provided firm promptly reported violations once occurred (US Sentencing Guidelines Manual § 8C2.5 (f) (2003), footnote 96; and also OSHA's 1982 Voluntary Protection Program, under which employers showing commitment and internal organizational capacity to comply with health and safety standards and improve safety records, and employee involvement in safety programs, could be relieved of regular inspections and “put onto a more conciliatory enforcement track” (Estlund supra note 88, 345). Statutorily incentivized self-regulation of this kind is distinguishable from the orientation, for example, of the second Bush administration, to mere voluntary compliance with guidelines.Google Scholar

92 Illustrating this with reference to private civil rights litigation (id., 334); diversity programs, internal dispute resolution, and mandatory arbitration clauses (338). “Non-union grievance procedures”, Estlund further notes, “…vary in their complexity from simple open-door policies to multi-step grievance procedures involving peer review, mediation and arbitration”, 335. Private labor regulation can be judicially enforced, for example, via defenses of “reasonable care” and where an employee failed to use “preventive or corrective opportunities provided by the employer”, (Burlington Industries and Ellerth 524 US 742 (1998) and Farragher v. City of Boca Raton 524 US 775 (1998). Hepple describes similar phenomena in the UK setting (Bob Hepple, Enforcement: the law and politics of cooperation and compliance, in Social and labor rights in a global context. International and Comparative Perspectives, 238 (Bob Hepple ed., 2002).Google Scholar

93 Notably, in Estlund's analysis, a phenomenon still defined on the national plane.Google Scholar

94 See Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992).Google Scholar

95 See Sabel, Charles, Dara O'Rourke & Archon Fung, Ratcheting Labor Standards: Regulation for Continuous Improvement in the Global Workplace, Columbia Law School, The Center for Law and Economic Studies Working Paper No. 185, Public Law & Legal Theory Research Paper Group, Paper No. 21, May 2, 2000.Google Scholar

96 See Estlund, , supra note 88, 359.Google Scholar

97 Id., 323.Google Scholar

98 Idiosyncratic US statutory prohibitions of “employer unions” are suggested as providing an additional reason in favor of this element of MSR: NLRA prohibits most intermediate options between individual bargaining and full union representation, and further “…limits the range of potential experimentation with alternative forms of employee representation within a tripartite scheme…”, id., 365.Google Scholar

99 With regard to the former, Estlund observes, “simply ignoring the law is an especially tempting strategy for marginal producers at the bottom of the production chain, who have little fixed capital or stake in their reputation…and who often rely heavily on undocumented immigrant workers who are too fearful or desperate to complain,” id., 330, 370.Google Scholar

100 The Fair Labor Standards Act's “joint employer” and hot goods provisions are highlighted as the kind of “hard” inducements capable of convincing employers to “take the [regulatory] high road”.Google Scholar

101 Giving as examples: i) the New York State Greengrocers” Code of Conduct, addressing issues including: labor and employment laws including relating to minimum wage and working hours, payroll records, training, and employee information; appointment of employee spokespersons; and regular inspections by monitors, who are appointed by the New York City Attorney General. Monitors report on violations under the Code to the Attorney General's office and a tripartite Code of Conduct Committee, which certifies new signatories and marshals disputes. Subscribing to the Code can earn partial amnesty for past statutory breaches. ii) the Maintenance Cooperation Trust Fund, a “non-profit watchdog organization”, established by the Service Employees International Union and unionized employers in the janitorial services sector, that was established to monitor compliance with statutory obligations and promote enforcement via private lawsuits, state and federal regulatory action (Estlund supra note 88, 353).Google Scholar

102 Estlund suggests that provisions regarding certification and selection of monitors, approved inspection protocols and conflict of interest prohibitions could follow along the lines set by the Sarbanes-Oxley Act.Google Scholar

103 See Estlund, supra note 88, 379.Google Scholar

104 “Where there is no power base and no information base for the weaker party, tripartism will not work…” Estlund, supra note 88, 358, quoting Ayres and Braithwaite, supra note 94. Further revealing confusion on this point, Estlund later states that as a consequence of the problem of “chronic [regulatory] under-enforcement” state regulators must “…come up with strategies to secure compliance that do not depend on intensive continuing oversight…” and so “will need to draw on non-governmental regulatory resources”, the latter which she interprets as opening the way for her model's independent monitoring arrangements. However, chronic under-enforcement is endogenous to Ayres and Braithwaite's RR model which, by contrast, demanded that any tripartite agreement address not just substantive issues but “…adherence to the institutional requisites of effective self-regulation…”, including granting freedom of association to workers.Google Scholar

105 “Without a greater coercive threat, it will be difficult to induce most employers to take meaningful steps toward effective self-regulation, and perhaps least of all toward employee representation,”: Estlund, supra note 88, 365. She also states that a move towards self-regulation must be “…part of a regulatory scheme in which serious sanctions also play a role”, id., 403.Google Scholar

106 See Estlund, supra note 88, 374.Google Scholar

107 Underlined subsequently with the suggestion that, “Part of what the monitors must monitor is the workers’ freedom, individually and collectively, to speak for themselves, both during and in between visits that will necessarily be occasional”.Google Scholar

108 Estlund is not insensible to this risk: “Employment law, both its regulatory and its rights dimensions, is in many ways a poor substitute for the system of self-governance envisioned by the labor laws… and collective representation key to rights and regulations enforcement.”Google Scholar

109 For a reconstructive approach to corporate law, but from the perspective of human rights, rather than labor law, see Janet Dine, Companies, International Trade and Human Rights (2005).Google Scholar

110 See Deakin, Simon, Enterprise-Risk: The Juridical Nature of the Firm Revisited 32 Industrial Law Journal 97, 98 (2003). See, also, Ireland, (supra note 21), coming from a more or less Marxist position, shares the view that shareholders (“passive rentiers“) are “severed from the firm's productive purpose”, and further asserts that shareholders benefit from “unpaid labor”, i.e., in the form of residual profits, so that there can be no moral case for giving them ownership rights. This is said to explain the relatively recent emergence of the “efficiency case” for shareholder rights. Property and commodity exchange are identified in this perspective as the principal means of extracting surplus labor, relocating social subjugation in the economic sphere, claimed by market liberals as “private”, inherently democratic, and a domain of “freedom and voluntary activity”.Google Scholar

111 Deakin, , supra note 110, 98.Google Scholar

112 Ireland, , supra note 22, suggests the expression “industrial democracy” usually implied the goal of the “introduction of worker representatives on corporate boards” as under German law. See alternative definitions provided by T.H. Marshall, Philip Selznick (both supra note 7) and Harry Arthurs, supra note 7 and Harry Arthurs, “The new economy and the demise of industrial citizenship. The new economy and the demise of industrial citizenship, Don Wood Lecture, Industrial Relations Centre, Queen's University, Toronto, mimeo. Google Scholar

113 See Collins, Hugh, Labor Law as a Vocation, 104 Law Quarterly Review 468 (1989), and Market Power, Bureaucratic Power and the Contract of Employment, 15 Industrial Law Journal 1, (1986).Google Scholar

114 Ireland, supra note 22, notes Kahn-Freund's dissent from this view (Otto Kahn-Freund, Industrial Democracy, 6 Industrial Law Journal 65 (1977)), rejecting the possibility of a unity of interest embracing capital and labor, and urging the inevitability of interest pluralism and so fundamental conflict between the two. Chantal Mouffe has criticized deliberative theory's often similar assumptions: Mouffe, Chantal, Democracy and Pluralism: A Critique of the Rationalist Approach, 16 Cardozo Law Review 1533 (1995); this point is taken up in Conclusion.Google Scholar

115 With reference to Collins, Hugh, The Productive Disintegration of Labor Law, 26 Industrial Law Journal 295 (1997), and Collins, Hugh, Flexibility and Empowerment, in Advancing Theory in Labor Law and Industrial Relations in a Global Context, 117 (T. Wilthagen ed., 1998). See, further, the analysis of Collins’ account presented above, Section C.II.Google Scholar

116 With reference to Gunther Teubner, Law as an Autopoeitic System (1993), 6.Google Scholar

117 See, also, Catherine Barnard, Simon Deakin and Richard Hobbs, Reflexive Law, Corporate Social Responsibility and the Evolution of Labor Standards: The Case of Working Time, ESCR Centre for Business Research, University of Cambridge Working Paper No. 294, (Cambridge: CBR, 2004).Google Scholar

118 See Ireland, supra note 22, 211, citing (footnote 38) Wood, Ellen Meiksins, The Politics of Capitalism, 51 Monthly Review 12 (1999). Pension fund socialism and “shareholder activism” are dismissed for the same reason, i.e., the imperative to maximize returns on shares at multiple points is intrinsic to capitalism, for example, shrinking public pension provision, pension funds subject to competitive pressures.Google Scholar

119 See Ireland, supra note 22, 205.Google Scholar

120 See Ireland, id., 217 (emphasis added).Google Scholar

121 See Ireland, id., 211. He also suggests this shows that global economic integration is eroding “national class compacts” on which the corporatist and welfarist capitalisms respectively of Germany and Sweden were based on up to the 1990s.Google Scholar

122 Alain Supiot, supra note 23, 31, states: “Labor law, whether national or international, is rooted in an industrial model that is currently being undermined by technological and economic changes…”, and later, “Employment practices have always varied widely, and the industrial model has never been universal. Yet, it was by reference to this model that the western countries’ labor law was developed. To a large extent, the same holds true of international labor law as embodied in the institutions of the International Labor Organization in particular” (id., 33).Google Scholar

123 Alternatively, “labor market” status (in the original, the expression used is statut professional).Google Scholar

124 Referring principally to the rising intensity of work, a similar degree of dependence, albeit without security of employment, income or social security in return.Google Scholar

125 Supiot, supra note 23, 36. See ILO/Peter Auer, supra note 73 for a similar analysis, which concludes the need for “a new combination of employment security and social security”, and “new framework of protected mobility (or protected LM transitions)” as “one possible form of an optimal institutional setting for a globalizing world, at least for the developed world”); and “…allowing workforce adjustment in relative security, without jeopardizing productivity and labor market performance”.Google Scholar

126 Supiot, supra note 23, 37.Google Scholar

127 Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time, O.J. L307, Vol. 36, 13 Dec 1993, 18–24.Google Scholar

128 Supiot, supra note 23, 39; Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers with Family Responsibilities, 23 June 1981, UN Treaty Series, Vol. 1331, 295 (1983). The indication is that law needs to take a broader view of time, and “Work must be adapted to the worker who performs it – not vice versa“.Google Scholar

129 Supiot, supra note 23, 42–44.Google Scholar

130 That is, because citizenship “…implies that the people it covers should participate in the framing and realization of their rights” (id., 44) with these words making clear the indebtedness of the Report's vision to Habermas’ law-making ideal.Google Scholar

131 Simon Deakin, The Many Futures of the Contract of Employment, in Labor Law in an Era of Globalization. Transformative Practices and Possibilities, 177, 195 (Joanne Conaghan, Richard Michael Fischl & Karl Klare eds., 2002), echoing this view, at the same time, reveals a Marshallian genealogy. Suggesting that a conception of social citizenship provided the underlying “normative force” for the employment contract's original function of spreading market risk through the working population while underpinning relations of production at the level of the enterprise, social citizenship “…extend[ed] the bases for social and economic participation in the same way that rights of democratic participation had been extended through political reform”.Google Scholar

132 See Catherine Barnard and Simon Deakin, Corporate governance, European governance and social rights, in Social and Labor Rights in a Global Context. International and Comparative Perspectives, 149 (Bob Hepple ed., 2002), giving as examples the decisions of the ECJ in Case C-84/94, UK v. Council (Working Time) [1996] ECR-1 5755, and Case C-67/96 Albany International v. Stichtung Bedrijfspensioenfonds Textielindustrie [1999] ECR I-5751.Google Scholar

133 See Supiot, supra note 23, 44: “The law can do no more than lay down principles whose implementation then falls within the scope of the law of collective agreements. It follows that a collective agreement should no longer be seen simply as a means of adjusting the particular interests of the parties thereto, but as a legal instrument whereby those parties are joined in the pursuit of objectives laid down by the law. In this process of determining the public interest, independent agencies could also play a useful role provided that democratic debate does not become sidetracked under the influence of “experts”.'Google Scholar

134 See Barnard, & Deakin, , supra note 132; see, also, Scharpf, Fritz, The problem-solving capacity of multi-level governance, 4 Journal of European Public Policy 520 (1997).Google Scholar

135 Even given a “…close link, in practice, between procedural rights and substantive outcomes”, Barnard and Deakin caution, “…the merits of the procedural approach must be carefully weighed against the costs in terms of uncertainty over the meaning and application of legal rights”.Google Scholar

136 Including via comprehensive justiciability of socio-economic rights, for this point citing (supra note 132, 148), Antonio Lo Faro, Regulating Social Europe: Reality and Myth of Collective Bargaining in the EC Legal Order (2000), 152.Google Scholar

137 See Eriksen, & Fossum, , supra note 1, 4, and to recap, further, at 8: “The public sphere located in civil society holds a unique position, because this is where everyone has the opportunity to participate in the discussion about how common affairs should be attended to. It signifies that equal citizens assemble into a public, which is constituted by a set of civil and political rights and liberties, and set their own agenda through communication” (my emphasis).Google Scholar

138 As noted by Gavin Anderson, “Until recently, the critique that a constitutionalism which embodied these [classical liberal] values failed to take seriously the threat from private power left mainstream constitutional theory largely undisturbed. This can perhaps be explained by the strong belief that the business of constitutional law is the regulation of the state…”: Gavin Anderson, Social Democracy and the Limits of Rights Constitutionalism, 17 Canadian Journal of Law and Jurisprudence, 31, 33 (2004), (footnote omitted).Google Scholar

139 Id., 32, 33, and generally, for discussion of whether Dworkin's “law as argument” approach can counter this claim.Google Scholar

140 See Scheuerman, , supra note 79.Google Scholar

141 See Anderson, , supra note 138, 58Google Scholar

142 See Fossum, & Eriksen, , supra note 1, 7–8, defining autonomy as “…constituted, when actors have to seek justification in relation to what others can approve of, viz., everyone who is subject to collective decision-making must be able to find an acceptable basis for such decisions”.Google Scholar

143 See Fossum, & Eriksen, , supra note 1, 8.Google Scholar

144 See Block, , supra note 13.Google Scholar

145 Consider, for example, the “good governance” narrative of the rule of law as market liberalization, discussed in Bevir & Rhodes, supra note 5.Google Scholar

146 See Young, Iris Marion, quoted in Fung, supra note 10, 47. Sciulli was another early advocate: Sciulli, David, Foundations of Societal Constitutionalism: Principles from the Concepts of Communicative Action and Procedural Integrity, 39 British Journal of Sociology 377 (1988).Google Scholar

147 Anderson, , supra note 138, 31 (footnote omitted) denotes a “procedural account of democracy, best actualized through the participation of formal equals in popular elections.”Google Scholar

148 Scheuerman, , supra note 79, 118, criticizes the experimentalist reconstruction of democracy, for presupposing “far-reaching social equality” as a condition of its success, with reference to Cohen, Joshua & Rogers, Joel, Power and Reason, in Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, 237 (Archon Fung & Erik Olin Wright eds., 2001).Google Scholar

149 See Nanz's definition of law, adopted here, as “a normative discourse in which competing claims are contested”: Nanz, Patrizia, Democratic Legitimacy and Constitutionalisation of Transnational Trade Governance: A View from Political Theory, in Constitutionalism, Multi-level Trade Governance and Social Regulation, 59 (Christian Joerges & Ernst-Ulrich Petersmann eds., 2006).Google Scholar

150 Habermas, , supra note 19, 8, (footnote omitted), citing Fossum, John Erik, Constitution-making in the EU, in Democracy in the EU – Integration through Deliberation?, 111 (Erik Oddvar Eriksen and John Erik Fossum eds., 2000).Google Scholar