The Importance of Dialoguing with Harry Arthurs

The importance of dialoguing with Harry Arthurs

Bruno Caruso – University of Catania

1. I have accepted the honour of writing about Harry Arthurs, in the collection of writings dedicated to him, as an intriguing opportunity to have an ideal conversation with a friend, as well as a great scholar.1 I have decided to dialogue with Harry starting with a detailed rereading of three articles of his2; their (macro) theme is globalisation, (but within that there is more), which, as he wittily recognises, cannot be judged negatively on the whole, if for no other reason than the fact that it has given him, as a lawyer, food for thought and cues for his writings over the last ten or more years. I won't interact analytically with this work (due to limited space) but I will try to pull together the traits which we have in common or that distance myself from his reflections. The final paragraph of the essay Landscape and Memory - which I consider one of the most beautiful passages of the modern labour law scholar's thinking and which is worth the pain citing in its entirety - summarises Harry's visionary ability to think critically. It entirely expresses the need for a constant equilibrium between memory and future which goes for political action, regulative strategy and also in the conceptual-theoretical analyses of labour law scholars. I'll report it, in synthesis, in its literal form:

«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

1 I gladly took the chance for an indirect dialogue, which is unlikely to compensate for what I and, I hope, we, missed out on and what the geographical distance between us denied: the opportunity to work together directly, "shoulder to shoulder". The few times that we managed to meet, in those scraps of time stolen from formal events (in our dear friend Julia Lopez's office, at Pompeu Fabra University, at the beautiful Rockefeller foundation centre in Bellagio), I got a clear feeling for Harry's rich communicative skills, of his liquid intelligence, of his capacity to control, understand and grasp complex historical processes that only a great intellectual, and not only a great lawyer, is capable of demonstrating.

2 In a reverse chronological order: Harry Arthurs, “Labour Law as the Law of Economic Subordination and Resistance: a Thought experiment”, (2013) 3, Comparative labor law and policy journal 585-604; Harry Arthurs, “Who’s afraid of Globalization? Reflections on the future of Labour Law”, in J.D.R. Craig and S. M. Lynk , Globalization and the Future of Labour Law (Cambridge: Cambridge University Press, 2011); Harry Arthurs, «“Landscape and Memory”: Labour Law, Legal Pluralism and Globalization in Advancing Theory in Labour Law in a Global Context», in T. Wilthagen (Amsterdam: North Holland Press, 1997). 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. 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». Keeping in mind such insightful methodological lesson, and trying to glean some ideas from the innumerable intuitions and suggestions contained in Harry's writings, I have tried to pick four macro ones with which I would like to briefly deal with (see infra, §§ 2.1., 2.2., 2.3., 2.4.). First of all, the elaboration of a "holistic" notion of globalisation (§ 2.1), underlining the outstanding predisposition, often detectable in Harry’s work, to address globalisation in a comprehensive and multidisciplinary way. Secondly, another leading subject recurring in Harry’s work, is the constant attention devoted to interactions between legislative regulation and social spheres, that brings Harry to deal frequently with the necessity of a rethinking of the traditional labour law epistemic categories (see § 2.2.). Thirdly, in § 2.3., I will try to explain how, in my view, the two macro-ideas just outlined are bound together by a holistic notion of labour law (ri)regulation, that is perfectly synthesized by Harry’s recent proposal to consider labour law as a “law of economic subordination and resistance”. The last directive that I picked up from Harry’s works – and particularly from the works cited above at footnote n. 2 – is the elaboration of a notion of “social resistance”, according to which the attempts to resist (and to counteract) the effects of globalization are meant to become more complex and articulated than how they used to be in the past. 2.1. The "holistic" vision of globalisation. Harry is fully aware of the shattering force of globalisation3 - and of its connected phenomena (the technological and digital revolution) - on the twentieth century narration of labour law. An impact which initially contributed to intensifying and then strengthening dialogue in the international community of labour law scholars, unifying languages and attempts at finding answers.4 In Harry's writings, the 3 Literature on globalization is of course quite endless. For some interesting contributions see Andrew Halpin and Volker Roeben (eds), Theorising the global legal order, Oxford: Hart Publishers, 2009; S. Sassen, Territory, Authority, Rights: from medieval to global assemblages, Princeton University Press 2008; P. Zumbansen, Defining tghe space of Transnational law: legal theory, global governance & legal pluralism, Comparative Research in Law & Political Economy Research Paper No. 21/2011.

4 It is in such a sense that I would place Harry's reflections on globalisation and its effects in “ideal” continuity with a great European labour law scholar, Massimo D'Antona. In an essay in 1998 - Massimo D’Antona, “Diritto del lavoro di fine secolo” (1998); now in B. Caruso & S. Sciarra, Massimo D’Antona, Opere, I, (Milano: Giuffrè, 2000) - before being brutally murdered by terrorists, D'Antona had grasped, well in advance, the reasons behind the crisis in the traditional narration of labour law in the twentieth century. D'Antona identified the crisis 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; the general representation of work through the unions. Re-reading Harry's writings there is, in fact, between the two labour law scholars, albeit culturally separated by the Atlantic, the overwhelming social and economic consequences on the deregulation and/or re-regulation of labour law are considered in an interrelated way. On the social level, Harry's intuition, which can be fully shared, is that globalisation redesigns the map of social suffering: globalisation calls into question the dualistic (conflictual) scheme of the Fordist era, which was at the basis of the theoretical formulation of industrial pluralism (capital vs labour), but also of the classic labour law paradigm. To the measure in which “globalisation of the crisis” produces newly coined horizontal conflicts of interest, which are not ascribable to the dualist conflict between capital and labour, all of this forces us to reflect anew on the actual idea of equality as referred to social classes. The advance of poverty, unemployment, the new risks of social exclusion place safety and inclusion strategies at the centre of the labour law narration rather than those related to mere distributive justice in industrial work. The "dismantling" of traditional categories (Dubet) 5 forces us to think back to the idea of inclusive solidarity where, at the centre of the labour law regulatory (and protection) strategies is no longer (or more correctly, is not only) the subordinate employment relationship but also the new exclusions, the new poverties, the fragmented precarious workers. The “social question” becomes broader and includes that which once upon a time was described as the middle class: craftsmen, small traders, small businessmen, impoverished professionals, indebted families, fifty year old managers sent to the scrap heap and bullied etc. The strategies of protection become, therefore, more articulate and complex to the extent that within the labour law narration (and its regulatory perimeter) new subjects make an entrance, those once considered opposites, and some of which even “enemies of the class system”: independent workers, semi-independent but also small businessmen, enlightened managers, the managing teams of Social Companies, the organisers of NGO and Voluntary Service Associations and so on. And the same subordinate standard workers begin to assume multiple identities: that of consumers, investors, of members of families with loads of social welfare in place of the welfare state which retracts, but also members of religious communities, etc.; with all the consequences that this implies on the traditional actors of representation and on the identification of the collective interest to be represented. As Harry points out, all this produces a recursive fragmentation effect of identities with which postmodern labour law must measure itself. 2.2. Rethinking labour regulation. The second recurring macro idea in Harry's writings regards rethinking labour law regulation. In his holistic vision of globalisation, Harry questions exact same awareness of the great labour law questions, yet there is a difference: fate did not provide D'Antona with the opportunity to develop and put in practice as he could have done and as he surely would have done, the intuitions contained in that essay. Instead, for his part, Harry has. Significantly, the final paragraphs of D'Antona's essay cited above are 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». These are all topics which also crowd Harry's reflections. It is an essay that, given its “persisting modernity”, I would like to make known to the international community of labour law scholars, even through its republication in English. It is a way to increase the awareness of the international labour law community on the thoughts of a great lawyer who does not only belong to the memories of Italian labour law scholars.

5 François Dubet, Integrazione, coesione e disuguaglianze sociali (2010) 1 Stato e mercato at 52-55, talks about the passage from the paradigm of integration and equality between positions, to the one of cohesion and equal opportunities, as the result of the weakening of class inequalities and the infinite multiplication of other inequalities. himself, with his usual lucidity, on the legal fall outs of the new social dynamics. His empirical research, rigorously inspired by the interdisciplinary method, forces him to rethink fundamental conceptual sanctuaries of the twentieth century narration: concepts such as class, solidarity, social justice, equality, which implicitly and sometimes explicitly underlies his legal thinking. The labour law paradigm, and its main methodological background (legal pluralism), are destabilised by the social remix, which is a result of globalisation and the epochal crisis and they also end up in defibrillation. The topic would become too complex to discuss further here6.

In order to summarise what I mean, I make reference to the excellent table in figure 1 in Labour Laws the Law of Economic Subordination, entitled the “Sources of labour law broadly defined”. I will immediately say that this synoptic framework, duly adapted to the national context, should be used, as I have started to do, in the introduction to every academic course of Labour Law, so as to explain its purpose and function. In this table, what is highlighted is Harry's own dynamic vision of the legal sources of labour law: or more correctly what is highlighted is the relationship between a static analysis of the sources and their dynamic "activation": therefore what we see are the functioning mechanisms and the application of the static source according to its regulatory potential and its social repercussions. From this synoptic summary, the complexity of the regulatory framework and the sources that can be attributed to labour law clearly emerges: in this framework the specific functions of every source are not diluted into an indistinct mass (system of sources), rather their new meanings and functions are accentuated. As an example, the function of favouring self- employment as an alternative to standard work corresponds to Taxation Law; the function of organising and facilitating - through legal regulation - new models of workers’ involvement in companies - above all in new types of company (highly innovative ones or those with a different approach to Human Resources: the so called ‘smart firms' - but also of reorganising the third sector and the social company) corresponds to Corporate Law; the function of utilising the principles of efficiency, effectiveness, meritocracy and individual responsibility in order to render the social objectives of public institutions more efficient and functional is attributed to Competition Law; the function of organising transnational Labour Law is attributed to International Law (and, in Europe, to European Law). In summary: from a holistic vision of globalisation to a holistic vision of regulation. 2.3. For a holistic regulation. Harry's third guiding idea, which I have taken from his writings, is that the holistic vision of globalisation and its social effects implies an equally holistic vision of legal regulation. He summarises this idea in an incisive way: “law of economic subordination and resistance”.

6 For an excellent example of labour law paradigms’ redefinition, see M. Feedland and N. Kountouris, The Legal Construction of Personal Work Relations, Oxford University Press, 2011. See also M. Coutu, M. Le Friant and G. Murray, Broken paradigms: labour law in the wake of globalization and the economic crisis, 34 Comp. Lab. L. & Pol. 565 (2012-2013), and, in a different perspective, G. Davidov and B. Langille (eds), Boundaries and Frontiers of Labour Law, Hart Publishing, 2006. Beyond being an outstanding lawyer, Harry is also an excellent historian. There are some passages in his writings which are apparently incidental, regarding reforms and the lack of reforms in the USA and Canada at the time of the great depression. Without making simplistic historical analogies with the current situation, Harry stresses how the in the 30s the great lawmakers of that epoch, inspired by Keynes, entrusted their reforms to a systemic framework of intervention. They invented a complex system of social legislation "ante litteram", including intervening in credit, on tax, on infrastructures, on territory, on business and not just on employment regulation. This experience has been relived in Europe in the last decades of the XX century, through the practice of “territorial social pacts” and yet this experience has not been valued appropriately at a conceptual and theoretical level. The element of strength of that experience is exactly the holistic vision of regulation where labour law (or more correctly: its frameworks and its regulatory techniques), does not become ancillary to other regulatory subsystems; rather it is capable of exporting its protective logic, but also its function of economic development and efficient labour market regulation, to other legal sub systems and to other markets.

2.4. For a holistic strategy of social resistance. The policy implications of Harry’s reflections are equally clear. As he cares to highlight, even following remarks of excessive "pessimism of reason" regarding his analyses, he doesn't consider himself to be a pessimist, but a "positive realist". In his writings, Harry demonstrates the conviction that a strategy of resistance, both political as well as regulative, cannot be entrusted (in the desolate landscape created by globalisation) to the tools of the social democratic tradition: national institutions of the political- parliamentary democracy, the Trade Unions, protective non-derogable legislation, collective bargaining.7 The political and regulative strategies of resistance to the effects of globalisation (not to globalisation in itself, which Harry rightly does not consider “an absolute evil” but a “fact”), must become more complex and articulate. Such strategies of resistance are the fruit of, possibly concerted and “socially creative” action by new and old actors, who start networking. They are new, like the spontaneous movements which have been born as a result of the crisis, that think and act in a global perspective, but also the no-profit and ecological associations, the new aggregations of the middle classes struck by the crisis, born for the protection of collective and not only corporate interests, etc. They are old, like the traditional political and social institutions of the left (parties and unions), in as much as they find the courage to reinvent themselves but also to consequently adapt their political strategy to a new internationalism which looks to the future and to postmodern globalisation, and is not oriented to the noble, yet dated, labourist internationalism of the twentieth century or which raises the flag to "constitutional patriotism".

7 See Harry Arthurs, “The Collective Labour Law of a Global Economy”, in C. Engels & M. Weiss, Labour Law and Industrial Relations at the Turn of the Century. Liber Amicorum in Honour of Prof. Dr. Roger Blanpain (The Hague: Kluwer Law International, 1998). 3. A (soft) criticism of Harry. Nevertheless, something is lacking in Harry's holistic formulation. The image that he gives us of the landscape is, perhaps, excessively desolate; and it is so, because his scrutinous approach towards the present, projected in the future, is too conditioned by 'his' personal - and I'd even say generational - memory. Harry is a lawyer belonging to a generation previous to mine: I am a baby boomer, existentially and generationally more optimistic; and in addition I am an Aquarius: the future intrigues me more than it seems to intrigue him, even if today, I agree with Harry, that there are more clouds on the horizon (and not only smog) that envelop the planet. Today in Italy - but also in Greece, Spain, Cyprus and Portugal - it is far more difficult to look out of the window, as Enrico Caruso did, look at the sea, feel inspired, and start to sing that particularly, wholly Italian "Ode to Joy" that is the song “O sole mio”. In spite of the clouds, I would, however, dare to assert that, perhaps, Harry underrates the fact that, under the desolate landscape which is the effect of globalisation, something positive can be glimpsed, and not only with regard to the resistance strategies; but also with regard to the way of working and producing not only wealth and material assets, but also innovation, beauty and immaterial assets. Perhaps Harry underrates that beauty and innovation are produced not only by the techniques incorporated in machines and technological apparatus, but also by intelligence, competence, creativity and the talent of real flesh and blood humans, of millions of `new craftsmen' scattered around the world8. I refer back to two recent reports that I have read with interest.9 What can be deduced from these reports is a picture of great and radical transformation of employment and its geopolitical context10; transformations that are not only a prelude to desolate "landscapes"; what is prospected are rather "landscapes" which do not dictate nor impose only strategies of "resistance". From these documents, but also from recent surveys by economists, 11 what emerges is that the change in employment - in the industrial factories but not only there - in the name of innovation puts the person at the centre, his freedom, his talent, his creativity, his ability: they are all social capital skills that contribute to redesigning the power relationships in companies on a participative, cooperative and inclusive basis and no longer on a conflictual one, as the visionary captain of industry Adriano Olivetti had foreseen some decades ago. It's about a “new social contract” that is being written inductively in innovative companies and industrial districts. A sort of “post-industrial pluralism”, or, to make use of Polanyi’s terminology, a “person-embedded economy” takes shape around this new centrality of the person in

8 Richard Sennett, The Craftsman (New Haven: Yale University Press, 2008).

9 The Future of Work: Jobs and skills in 2030, UK Commission for Employment and Skills, 2014; The future of work a journey to 2022, PWC, 2014.

10 The Polanyi’s cultural heritage related to his “Great Transformation” paradigms (K. Polanyi, The Great Transformation: The Political and Economic Origins of Our Time, (1944), (Boston MA, Beacon Press, 1957), have been recently used to conceptualize the relations between legal regulation and global markets by Christian Joerges & Josef Falke (eds), Karl Polanyi, Globalisation and the Potential of Law in Transnational Markets, (Oxford- Portland OR, Hart Publishing, 2011.

11 Enrico Moretti, New Geography of Jobs (Boston: Houghton Mifflin Harcourt, 2012), where a positive effect of the development of innovations sectors (“brain hubs”) on the occupational performances of the traditional manufacturing industries and on the low-skilled workers to is highlighted as far as the US labour market is concerned. employment, on the territory and in the company, around this increasingly established idea of intelligent and sustainable productivity which seems to bring Hannah Arendt's premonitory ideas of the humanisation of work to life12. It will be the task of a new generation of labour law scholars to try and sort out and conceptualise this change in terms of legal theory and to suggest solutions in terms of (new) regulative tools. Nevertheless, they will still need Harry's serene wisdom and intelligent lucidity.

12 Arendt, The Human Condition, Chicago, University of Chicago Press, 1958.