Homo Juridicus by Alain Supiot

Author:Alain Supiot
Language: eng
Format: epub
Publisher: Verso Books

The Instrumentalization of the Sources of the Law

The rapid spread of contractual techniques has also affected the sources of law, but without increasing the freedom of contracting parties any more than it has in other areas. When integrated into the sources of law, contractual agreements are encumbered by norms that lie outside the remit of those who negotiate or implement such agreements; the latter are instrumentalized by the law and their negotiation is pre-programmed. Inversely, laws and regulations may themselves be instrumentalized by contractual agreements that are made in advance of any political decision, and that predetermine it.

This instrumentalization is evident above all in the development of legislation on collective bargaining. Over the past thirty years, the collective labour agreement has gradually ceased to be simply an agreement concerning the interests of the employers and the employees, as represented at the negotiation, and has become a means of achieving objectives that go beyond these interests. This development affects both the identity of the contracting parties and the objects of negotiation.

The conditions that have to be met in order to arrive at a collective agreement have become increasingly stringent over the years. Initially, any grouping of workers or employers could sign a collective agreement. Thereafter, layer after layer of restrictive conditions concerning the ‘capacity to enter into agreement’ were added. This capacity was first restricted, as concerns the representation of employees, to professional associations, then to associations that could prove they were representative. With the exemptions instituted by agreement in 1981, then with the reform on the 35-hour week, the prerequisite of majority representation emerged in France, subsequently to be applied to all collective agreements at the demand of management and labour.99 This development has a counterpart in European Community law, where ‘sufficient collective representativity’ of signatories to agreements that will have a legislative character – instituted by the Maastricht Treaty – became obligatory.100

These restrictive conditions concerning the ‘capacity to enter into agreement’ are the result of the altered function of the collective labour agreement. As soon as a collective agreement decides on issues of general interest, it must be elaborated by legal entities recognized by the authorities (the government or the judge) and must be able to justify its role in quantitative terms (majority representation, referendum). The form of non-parliamentary democracy that is emerging out of this development of the collective agreement leads to the introduction of techniques for accrediting legitimate contracting parties who are then entitled to contribute to the contractual elaboration of the law.

With the extension of obligations to negotiate, the objects of the negotiation also come to be binding on the contracting parties. Yet where there is contractual freedom no one should be legally bound to enter into negotiation and even less into contract. French labour law began to depart from this principle already in 1971, when it recognized employees’ right to collective bargaining, and even more clearly after 1981, with the introduction of the first obligations to collective bargaining. This legal innovation was presented by parliament

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