Caruso, Bruno. (2007) Changes in the workplace and the dialogue of labor scholars in the "global village." WP C.S.D.L.E. "Massimo D'Antona" .INT - 50/2007. [Working Paper]
This essay comprises three connected but conceptually separate parts. The first part, which is prevalently methodological in nature, contains as yet provisional reflections on the use of the tools of comparative analysis in labour law. This is a crucial issue that has to be reconsidered within the context of an era in which the territorial dimension of the regulation of labour relations no longer necessarily coincides with that of the nation state, and others become equally pertinent: the infranational, the European supranational and the global transnational dimensions. This was the guiding principle of the seminar from which the present paper originated. The second part focuses on the contents of the dialogue between labour law experts worldwide when faced with the radical changes in labour in the post-Fordist era. This transnational dialogue is an event which may be the prelude to the circulation of concepts and regulatory proposals, if not actual models, tending towards global governance of certain dynamics which are currently transforming labour. It is therefore assumed that the international labour law community cannot but accept responsibility for an open-minded interpretation of fundamental social rights, leading towards their global affirmation and effectiveness; an interpretation which, given its openness, must of necessity be of a comparative nature, not least by virtue of the many positive examples provided by high courts operating at a national, supranational and transnational level. This part will introduce a critique of certain cultural mindsets regarding the relationship between comparative legal analysis, national legal systems and market globalisation, attitudes which are not exhibited explicitly but, as often happens in dialogue between labour law scholars, come in the form of political and ideological pre-comprehension; attitudes frequently hovering in the background when specific issues are dealt with. The third and last part, which is closely connected with the previous one, presents a possible new cultural approach to some salient issues, chosen merely by way of example and treated in a general fashion: a) the problem of the relationship between territorial levels of regulation; b) the relationship between the weight and consistency of different regulatory sources (hard vs. soft law) and the related issues of governance. Reference to these issues confirms the increasingly axiological and normative, as compared with cultural and cognitive, function of comparative legal analysis in the era of globalisation. The analysis of these issues is mainly inspired by the constructive critical relativism of Michael Ost and Francois van de Kerchove. The approach is one of trying to imagine a possible way of avoiding certain dangerous epistemic traps that are widespread in current labour law analysis in Italy and elsewhere: the neo-liberal drift or a Third Way topdown approach, or again, the conservative, uncritical defence of tradition. An attempt will, however, be made not to lose sight of those legal principles that are an integral part of the labour law DNA and the values enshrined in the fundamental and constitutional social rights handed down by European "labour law" (legal) tradition.
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