The New Discourse of Labour Rights: From Social to Fundamental Rights?

Comparative Labor Law and Policy Journal, Vol. 29, No. 1, 2007

50 Pages Posted: 27 Mar 2007

See all articles by Judy Fudge

Judy Fudge

Kent Law School; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Abstract

This paper explores the emergence of the new discourse of labour and social rights in the world of work and focuses in particular on how this discourse is being used in the European Union and the ILO. The new normative language responds to the need to re-institutionalize the employment relationship in light of economic restructuring, the breakdown of the standard employment relationship, and the challenge to traditional forms of collective representation. It also involves a realignment of the relationship between social rights and the market, and a reconceptualization of the juridical nature of social rights. The idea of social rights relating to work is examined from three perspectives - genealogical, conceptual, and normative. Labour and social rights emerged at a particular time and place, and they have a particular relationship to other human rights. This legacy shapes how labour and social rights have been understood. The lineage of labour and social rights starting with T.H. Marshall's influential conception in the aftermath of World War II and ending with the contemporary discourse is sketched in the next part. The emphasis is on illustrating the extent to which the new language of labour and social rights is a response to the new phase of market expansion associated with globalization and neo-liberalism. The third part provides a bridge from the genealogical to the conceptual and normative approaches to understanding labour and social rights by shifting focus to examine elements in the new discourse of labour and social rights, especially the increased prominence of law, and the conventional typology of different kinds of rights. Labour rights are used to illustrate some of the weaknesses of the prevailing typology as an analytic framework. However, instead of offering a new typology of different types of rights, the fourth part offers a taxonomy of the different dimensions of labour and social rights, which concentrates on the juridical nature of social rights in the EU. The final part provides a brief discussion of the normative basis of the new discourse of labour and social rights at the EU and ILO, which invokes the work of Amartya Sen, especially his concept of capability.

Keywords: labour, rights, international, social, capabilities, human rights

JEL Classification: K31

Suggested Citation

Fudge, Judy, The New Discourse of Labour Rights: From Social to Fundamental Rights?. Comparative Labor Law and Policy Journal, Vol. 29, No. 1, 2007, Available at SSRN: https://ssrn.com/abstract=974915

Judy Fudge (Contact Author)

Kent Law School ( email )

Keynes College
Canterbury, Kent CT2 7NP
United Kingdom

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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