Law & Ethics of Human Rights Volume 3, Issue 1 2009 Article 3 What is International Labor Law For? Brian A. Langille∗ ∗University of Toronto Copyright c 2009 The Berkeley Electronic Press. All rights reserved. Electronic copy available at: http://ssrn.com/abstract=1476364 What is International Labor Law For?∗ Brian A. Langille Abstract This Paper suggests that the answer to the question “what is domestic labor law for?”— commonly regarded as securing “justice against markets” or a justified tax on market activity—has informed the search for the answer for the question “what is international labor law for.” This is reflected in what this Paper refers to as P2, which provides that “the failure of any country to adopt humane conditions of labor is an obstacle in the way of other nations which desire to improve the conditions in their own countries.” P2 envisions a “race to the bottom” by rational states trapped in a Prisoner’s Dilemma game. The author maintains that this cannot be the objective of ILO which cannot stop “the race” given its deficient enforcement mechanisms to ensure compliance. This Paper suggests an alternative raison d’etre for the ILO, which is called P1, namely social justice: “universal peace can only be established if it is based upon social justice.” P1 reflects what states actually seek to achieve. Following Sen, this Paper suggests that there is no tradeoff between social justice and economic efficiency. Therefore the promotion of labor rights by the ILO will contribute both to social justice and to economic success. Thus the ILO should promote international labor law so as to lead member states to pursue their self-interest which is consistent with the collective goal of humanity. KEYWORDS: international labor law, standard nonstandard answer ∗This paper is a revised version of a lecture of the same title delivered at the ILO in March 2005 as the Governing Body Public Lecture. I am indebted to many readers and commentators, including, at the ILO, Lucio Baccarro and Farncis Maupain; participants in the Faculty Seminar of School of Industrial Relations at Cornell University, Ithaca, New York, (November, 2005); in the Workshop on Legal Protection of Worker’s Human Rights at the International Institute for the Sociology of Law, Onati, Spain (May, 2006); in the Graduate Seminar led by Professor Bruno Caruso of Faculty of Law, University of Catania, Sicily. (June, 2006); in the Faculty Seminar of The Hebrew University Faculty of Law, Jerusalem (December 2007); and in the International Conference on Labor Rights in the Era of Globalization, held by the Academic Center of Law & Business in Ramat Gan. In this latter regard I am especially indebted to Professor Eyal Benvenisti. I also wish to thank my colleague Patrick Macklem. I am also indebted to the editors and to an anonymous commentator for most helpful assistance. I also thank Pnina Alon-Shenker, SJD candidate in the Faculty of Law University of Toronto, for superb assistance with the final manuscript. The core ideas contained in this paper were formulated while I was Visiting Fellow at the International Institute for Labour Studies at the ILO in Geneva. I wish to thank the members and staff of the institute, especially Acting Director Jean-Pierre Laviec, for their intellectual, material, and collegial support while in Geneva. Electronic copy available at: http://ssrn.com/abstract=1476364 Langille: What is International Labor Law For? INTRODUCTION: IN THE GRIPS OF AN OLDER THEORY Theory is inescapable. Terry Eagleton, invoking Keynes, put it this way: “those … who disliked theory, or claimed to get along better without it, were simply in the grip of an older theory.”1 Keynes original formulation was as follows: “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.”2 These passages are of interest to me, especially the notion that ideas “ramify … into very corner of our minds” and that we can actually be, as Eagleton puts it, “in the grip of,” an older theory. What is it to be “in the grip of” a theory? Being in the grip of a theory is the most natural precondition of human interaction with the world. Northrop Frye, the great literary critic, expressed this idea in a wonderful way. Having a theory, or overarching vision, which makes sense of our world and our place in it, is not a matter of having some gauzy set of abstractions to which we revert only in philosophy courses at university. Instead, writes Frye: Every person with any function in society at all will have some kind of ideal vision of that society in the light of which he operates. One can hardly imagine a social worker going out to do case work without thinking of her as having, somewhere in her mind, a vision of a better, cleaner, healthier, more emotionally balanced city, as a kind of mental model inspiring the work she does. One can hardly imagine in fact any professional person not having such a social model—a world of health for the doctor or justice for the judge—nor would such a social vision be confined to the professions. It seems to me in fact that a Utopia should be conceived, not as an impossible dream of an impossible ideal, but as the kind of working model of society that exists somewhere in the mind of every sane person who has any social function at all.3 To be “in the grip of” a theory is to be, as Frye says, simply “a sane person” with “any social function at all.” In this essay my claim is that international labor lawyers have a kind of “mental working model,” to use Frye’s term. They have a vision of “Utopia” and of 1 TERRY EAGLETON, LITERARY THEORY: AN INTRODUCTION ix (2nd ed. 1996). 2 JOHN MAYNARD KEYNES, THE GENERAL THEORY OF EMPLOYMENT, INTEREST AND MONEY preface (1964). I remember my first legal philosophy professor, the late Robert Samek of Dalhousie Law School, making the same point by noting that “Education does not so much consist in putting furniture into the mind, as taking it out.” 3 NORTHROP FRYE, NORTHROP FRYE’S WRITING ON EDUCATION 174 (2000). Published by The Berkeley Electronic Press, 2009 48 Law & Ethics of Human Rights, Vol. 3 [2009], Iss. 1, Art. 3 their role and of international labor law’s role in attaining it. This vision is quite rich and detailed but rarely fully articulated as people are usually too busy to attempt this. But, as Frye says, it “exists somewhere in the mind” and when they are asked the question “what is international labor law for?” it is this vision which both structures the way they understand this question and outlines the answer to it. My thesis is that it is time to rethink that working model, that vision, that Utopia, that account of what international labor law is for. International labor law needs a new account of itself—an account which will both make better sense of the world as we now know it and, which better accords with our best account of what we should be doing about it. Failure to reconsider the purposes of international labor law in these times has many costs, especially for the ILO. Among the larger of the costs the ILO must bear is the increasing irrelevancy of ILO law as we have known it and, as a result, the declining legitimacy of its legal activities as they are carried on outside of the ILO’s central constitutional processes. To provide a better account of international labor law one must start in what may seem to be an unusual place, that is, with our account of domestic or national labor law. That is where this essay starts. It then proceeds, in ten steps, to not only articulate the standard answer, but to show both the need for, and the outlines of, a better answer, to the question “what is international labor law for?.” I. ANSWERING OUR QUESTION IN TEN STEPS 1. The question “what is international labor law for?” begins with the question “what is domestic labor law for?” The proof of this requires that I answer this latter question. This I do below, but it is necessary to make this claim at the outset to see clearly why I undertake that task. Here is an aside and a caveat. I am a Canadian labor lawyer. I believe I know what the answer to this question is in Canada and perhaps even in the United States, the United Kingdom, and in other common-law systems. My instinct is that the answer to the basic question “what is domestic labor law for?” is perhaps the same everywhere. But I do not claim to know that this is true. What I do claim to know is that every legal system has an answer to this question and every labor lawyer is, “in the grips of” the account which provides the answer. (This simply is a precondition to being a well educated labor lawyer.) This does not mean that they all agree with the substance of their labor law. It does mean that that account tells them what their labor law is and is not, and provides the standard normative defense of it—whether they approve of, or agree with, any or all of its content or not. It provides the subject matter about which people can disagree. (It creates the broad agreement without which real disagreement is impossible).