Introductory Overview

Yossi Dahan, Hanna Lerner, and Faina Milman-Sivan remind the reader early of Hugo Sinzheimer’s affirmation: “Labour Law is on a mission, intended to uphold human dignity … imprinting … a ‘real humanity’ that is much more than some mere ideological humanism.”^{Footnote 1} The urgency of this mission is felt throughout this book. This book is about life in dignity, and the claim made by Dahan, Lerner, and Milman-Sivan is stark: despite the “international declarative consensus on universal labour standards, existing labour laws often do not guarantee life in dignity, even in developed states.”^{Footnote 2} And while maybe not sufficient, international labour standards are understood to be a necessary condition for life in dignity.^{Footnote 3}

Post-Brexit, post-Trump, there could hardly be a more pressing moment to think deeply about how to reimagine the relationship between social justice and the international economic order. The direction of globalization is deeply contested. In many parts of the world, including in the global North, multilateral trade and regional integration initiatives are fundamentally challenged because they appear to leave people and their social well-being behind. If workers in the global South and migrant workers (the South of the global North) face precarious conditions, and worker-consumer-citizens in the global North fear that they bear the social and economic risks of markets individually, then the case for why they should support deepened global integration becomes particularly challenging—yet essential—to articulate.

The introduction and several other chapters in this collection invoke one of the most significant factory fires of our time: Bangladesh’s Rana Plaza disaster, in which 1,134 people lost their lives and thousands more were injured. It is far from the only factory fire that has occurred in the region, and factory fires continue to happen in global production chains worldwide, but its enormity coupled with the mediatized images of brand-name clothing on the wrecked factory floors alongside the bodies of trapped women workers spoke at once to a very specific form of social connection theorized by the editors of this book—labour connection—and to legal responsibility.

Several chapters offer fine-grained assessments of the economic and to some extent organizational behaviour literatures, through which we might understand labour connection and legal responsibility under contemporary globalization. Labour connection and legal responsibility touch “the very organizational structure and strategy of individual firms, thanks to the increasingly easier movement of financial capital, technology, and information.”^{Footnote 4} Miriam Ronzoni and the other contributors to this edited volume remind the reader of the challenge of tracking responsibility for a range of abuses of power in labour law and labour relations, globally. In their recognition of the micro-web of responsibilities that support or enable the macro, the authors acknowledge the anachronistic manner in which we understand the employer–employee relationship if our focus is remedial responsibility. This traditional understanding obscures a theory of justice that allows us to see the thick web of labour connections and allows us to express who should be responsible, morally and legally.

Alive to the inadequacies of the current labour governance framework, they set out to frame labour connection and legal responsibility through new intellectual, analytical tools. Namely, Dahan, Lerner, and Milman-Sivan apply principles of justice—via relational theory—to the largely empirical field of global labour. Their core insight is that “principles of distributive justice cannot be formulated or justified independently of the practice they regulate.”^{Footnote 5} A new legal (and political) concept of shared responsibility is needed, which requires us to rethink transnational governance specifically as it relates to labour, globally. Their framework for responsibility is situated not as an alternative to, but rather within, open market economies; global justice is a question for labour law. In other words, Dahan, Lerner, and Milman-Sivan’s framework is a transnational labour law (TLL) project, part of the process of understanding and theorizing the implications of a polycentric—rather than uniquely state-centric—approach to the global, one that insists on articulating regulatory responses that include, but also extend beyond, individual states.^{Footnote 6}

Global justice is at once theoretically satisfying and carefully grounded. At its core is the global justice debate, often framed around Iris Marion Young^{Footnote 7} in respect of understanding frameworks for responsibility for social justice. Christian Barry and Kate Macdonald offer a sustained challenge to the view that Young’s social connection model should replace the liability model of individual responsibility for what I will refer to, in short hand, as decent work deficits.^{Footnote 8} I am most taken by their willingness to underscore the significance of time.^{Footnote 9} Without rejecting the social connection model, Barry and Macdonald recognize that even when one can develop capacities to deal with challenges of structural injustice through strengthened systems of due diligence, collaboration with other actors, and so on, “such capacities are likely to develop very slowly—especially where the development of new transnational institutions and relationships is required.”^{Footnote 10}

Brian Langille suggests in his chapter on the narrative of global justice and the grammar of law, that one of the most interesting enterprises in this project is to bring the legal and global justice literatures into conversation with each other.^{Footnote 11} The collection does so, in clear, highly readable and jargon-free prose. The editors’ own distinct and important contribution focuses on their approach to labour connection. However, the editors do not impose a particular stance on the global justice debate, and that is a virtue. This review is therefore structured around three important themes that emerge in Global Justice: first, to discuss global justice, history matters; second, the global South matters; and third, the appropriate governance levels matter.

1. To Discuss Global Justice, History Matters

Alan Hyde recalls that global justice theorists emerged largely in “response to John Rawls’ controversial assertion that justice among nations was a different problem than those discussed in A Theory of Justice.”^{Footnote 12} For Hyde, international labour law is inherently concerned with working conditions in other countries. One need look no further than to the International Labour Organization (ILO)’s 1919 Constitution and its 1944 Constitutional Annex, the Declaration of Philadelphia. What has changed, as Anke Hassel and Nicole Helmerich affirm in their chapter in this book, is that the prime addressees of ILO conventions are no longer national governments, who they argue “bore sole responsibility for transposition and enforcement.”^{Footnote 13} Even if the ILO’s constitutional mandate extends beyond national action, in assessing international economic action under the Declaration of Philadelphia in light of its social justice principles, we were not in the realm of the transnational. Dahan, Lerner, and Milman-Sivan’s book clearly is. But is Hyde correct to argue that labour law does not have to worry about whether principles of justice should extend across national boundaries?^{Footnote 14}

Hyde’s position only stands if one abstracts away from the premises of the post-World War II compromise, in which the international economic order—including the trade law regime—developed transnationally while leaving labour redistribution as a governance matter for individual states—no matter how small or poor or marginalized in the global economy. At the risk of oversimplification, the compromise was Adam Smith abroad, and John Maynard Keynes at home. The decision to treat labour as domestic was part of the political compromise, in Ruggie’s terms, an “embedded liberalism.”^{Footnote 15}

Embedded liberalism lies at the heart of the social welfare state and the modern employment relationship. Karl Polanyi recognized that in a market economy, there would be a “double” movement by members of society to enshrined social citizenship rights or a range of labour rights and social protections.^{Footnote 16} In exchange, states were freed to liberalize the economy progressively through trade while social policies remained to be regulated by individual states. This post-war bargain was retained even within one of the most significant forms of regional economic cooperation and, ultimately, economic and monetary union: the European Union.

Dahan, Lerner, and Milman-Sivan’s book provides a framing in legal philosophy upon which to explore, challenge, and move beyond the post-War political economy framing of embedded liberalism, in its call to take the transnational seriously. The focus in this book on global justice might be understood as a call to think subtly and carefully beyond the “double movement” and domestic political mediations of the social in the historically and ongoing racialized^{Footnote 17} economics that are reflected in labour and social security law,^{Footnote 18} as well as the movement of that fictive commodity—labour—across territory.^{Footnote 19} The editors make this claim not through abstraction, but by insisting on the specificity of the labour connection central to the tripartite (they say triangular) relationship between state, workers, and employers, wherever they are.

2. The Global South Matters

How should we understand the literature canvassed in Global Justice in relation to the refined work that has been developing on global labour inequality? Is global labour inequality not at the heart of the global injustice that compels labour’s social justice focus?

As those—like Samir Amin—who challenge the overuse of the language of marginalization assert, the global South’s curse may well be that it is remarkably mineral rich and central to the global economy (think gold, diamonds, and coltan).^{Footnote 20} The oft-overlooked dimension of Polanyi’s analysis is the importance of colonial exchange, which set patterns of relationship. The colonial preferences essentially supported embedded liberal policies in the global North. The borders for distributive justice were set very literally in terms of citizenship, but were largely closed to citizens of former colonies. Moreover, in the post-colonial context, most developing countries lacked the resources, institutional capacity, international support, and in some cases, political interest to cushion their citizens from the adverse domestic impact of market exposure through trade.^{Footnote 21}

In Global Inequality, Branko Milanovic moves beyond Thomas Piketty’s focus on national inequality to offer a compelling discussion of global inequality that uses the same data sets to assess both national and global inequality.^{Footnote 22} On the basis of this literature, Milanovic is able to predict that “global equality is not in sight.”^{Footnote 23} Could it be that country of origin will become, if it is not already, more important to predicting life chances than one’s social class at birth?^{Footnote 24} Milanovic’s work keeps our focus on radical inequalities between countries,^{Footnote 25} and commentators like Göran Therborn insist upon the persistence of existential inequalities, including the deep racial divides and the distributional effects within them.^{Footnote 26}

In Chapter 2, Miriam Ronzoni engages some of this literature in her affirmation that class trumps nationality; however, she regrettably does not grapple with the previously discussed datasets that would call into question that dichotomization. Yet one of Ronzoni’s key insights is that social mediation is not just about inequality and distribution, however important the contemporary thinking on inequality may be.^{Footnote 27} She recognizes the claim to the democratization of transnational power, a theme to which Carol Gould also turns her attention in the final chapter of the book.^{Footnote 28} But it is fair to state that one of Ronzoni’s expressed reasons for focusing on the global justice literature is that it reframes issues as not just distributive, but also as political questions. The political question, as it is linked to the North South question—and political backlash—is particularly palpable on the topic of the movement of persons, or labour migration.

In her discussion of labour migration, Einat Albin offers a compelling framing of trade union responsibility to migrant workers from a global justice perspective. Global migration is increasingly not just a challenge to the internal inconsistencies of our approach to free trade^{Footnote 29}, but also as a response to global inequality.^{Footnote 30} Albin’s analysis builds on a “thick” version of the labour connection, emphasizing responsibility, labour connection, and solidarity. If colonial history and the current international economic order create economic migrants due to poverty, as Albin argues, or global inequality, as Milanovic and others would state, then transmigration is a necessary part of fulfilling the moral obligation of global justice. This is a crucial insight.

However, I was left wondering why, of all the actors engaged in global injustice toward “work migrants,” Albin chose to focus on trade unions. I know why the IMF/World Bank have focused on unions, seeing them as “rent-seekers” who have an adverse effect on the distribution of wealth.^{Footnote 31} This IMF/World Bank choice, of course, is part of the political project of economic liberalization: one of the strongest outcomes in the post-Washington Consensus era has been the decentering (some would say destruction) of organized labour as a political actor.^{Footnote 32} Milanovic reminds the reader that decreased “levels of income inequality are, almost by definition, the result of social and political struggles, sometimes violent ones”^{Footnote 33}, which helped to sustain the kind of redistribution witnessed for part of the twentieth century. We no longer live in the immediate post-war period in which strong trade unions and workers’ political parties, constrained by the example and military might of the Soviet Union, “helped to constrain the power of capital everywhere.”^{Footnote 34} Moreover, there is an increasingly mainstream consensus of the “muddled” if not dishonest case for trade agreements, and in particular the construction of a “separate judicial track”^{Footnote 35} for investors through investor-state dispute settlement mechanisms.

Where is the geopolitical countervailing force that will enable the mediation of the social in the economic to occur? If the concern is to challenge the neoliberal erosion of social rights, should the starting point really be to attach moral and legal responsibility to often beleaguered trade unions of the global North? Let me hazard a partial answer to my own question. We desperately need for unions to see why transnational, South–North solidarity is absolutely crucial, for them to begin to re-claim the political power necessary to respond, and to articulate clearly to their constituencies why they must respond. Unions—however weakened—are what we have left, a theme that comes through in several of the chapters.^{Footnote 36} Solidarity, as Albin affirms, is grounded in connections. I would add that those connections must sanguinely recognize the temporary twentieth-century compromise at the core of global inequality that built social and political stability in the global North on the backs of workers in the periphery—the global South and the South of the North—, acknowledge not only its instability but its unsustainable injustice, and rebuild on the conviction that the North and the South are indivisible.

3. The Appropriate Governance Levels Matter

Several of the contributors, including Dahan, Lerner, and Milman-Sivan, Fudge and Mundlak, and Ronzoni, explicitly or implicitly build on Fraser’s insight that the frame matters, and that if a problem exists at a global or transnational governance level, it must be addressed at that level.

Ronzoni, drawing on Wolfgang Streek’s work,^{Footnote 37} argues for a new Bretton Woods.^{Footnote 38} As Streek has argued, the EU has been a vehicle through which capital has been able to advance its interests in what must be recognized as an undemocratic fashion. It has allowed markets to “boss around” democracies. After an illuminating discussion of the limits of democratic cosmopolitanism, Ronzoni argues instead that “only binding the power and mobility of capital at the global level will enable domestic constituencies to regain control over their domestic affairs in matters of labour.”^{Footnote 39} The postwar international regime was designed to accommodate Keynesian welfare states, not to withstand a transnational challenge to those policies’ dismantling. In the context of global re-structuring, in which shareholder primacy and financial capital predominate, transnational corporations hone the ability to use a number of states to bypass the regulation of any particular state, and ultimately of all.^{Footnote 40}

Moreover, Martijn Konings speaks of the under-estimated moral chastening of “undisciplined” Keynesian social spending in the name of redistribution that characterized the economic liberalization policy principles of the 1980s Washington Consensus. Fiscal discipline was considered necessary, even natural (laissez faire); it facilitated the relinquishment of economic responsibility for less fortunate “others.”^{Footnote 41} As a result, a deepened integration through the expansion of multilateral trade and a plurality of regional trade initiatives has not led to a commensurate deepening of social welfare policies and labour rights, domestically or regionally. Rather, and as Ronzoni suggests, through competition and regulatory chill, at least some states have organized their own decentering.

The contemporary constellation therefore makes the future at once difficult to imagine but all the more crucial to construct. In relation to the important theorizing of global justice, it is necessary to look back and challenge premises about how the social should be governed. It is also necessary to be open to learning from counter-hegemonic, experimentalist governance alternatives, as we look forward.

Of particular importance to this discussion on global justice is the way that Nancy Fraser^{Footnote 42} theorizes the dimension that she added to work on recognition and redistribution: representation, and more particularly, political representation. She conceives of political representation as a first order question, but one with three levels. At the third level, Fraser captures a challenge that, in my opinion, is central to TLL: that is, the misframing of questions as national in scope. These questions are expected to be resolved at the level of the Westphalian distributive state, when it seems increasingly important to engage the analysis at a different level. Fraser recognizes the importance of explicitly naming the transnational in social justice claims. In fact, everything about Dahan, Lerner, and Milman-Sivan’s book seems to remind us that labour law should be understood at the very least across multiple governance levels. I would argue further that the redefinition becomes a specific, TLL project, in which global justice acts upon particularized, spatio-temporal orderings that require thick forms of solidarity.^{Footnote 43}

Fudge and Mundlak’s ambitious chapter relies explicitly on Fraser’s framing. It at once addresses WTO decision-making in the China-Tyres case^{Footnote 44}, as well as the Court of Justice of the European Union in the Rush Portuguesa ^{Footnote 45} and Rüffert ^{Footnote 46} decisions that interpreted the European Union’s posted workers’ directives. We need more of this kind of fine-grained analysis that addresses the interface between the political constitution of actors as they engage with institutions situated beyond, and the Keynesian-Westphalian frame. I would encourage labour lawyers to tackle the trade law analyses and their distributional outcomes that allow some issues to be rendered visible by trade decision-makers while rendering others invisible. These mechanisms are part of what has made the embedded liberal bargain such an unstable compromise.

Fudge and Mundlak affirm that “if the process for resolving the conflict is fair, inclusive, and dynamically open to challenges, then its outcomes on distributive justice are more likely to be legitimate and persuasive.”^{Footnote 47} I agree, but in the current turbulent moment, I will not hide my concern: The failure to acknowledge the “conservative social welfare function”^{Footnote 48}—that is, that workers expect to maintain if not improve their inter-generational standards of living—has contributed to a growing backlash against the direction of global and regional governance, if not globalization itself. More troubling still, populist politicking has all too easily instrumentalized working class rage in certain regions of both the global North and the global South, to “emancipat[e] unbridled hate”^{Footnote 49} directed not at economic élites, but at “Others.” This prevents worker-consumer-citizens from building, sustaining and enhancing labour rights and redistributive social security mechanisms transnationally. I think we need to be extremely wilful not just about stating the global justice claims that underlie the work that we do, but ensuring that those claims resonate.