Labour Market Transitions and the Promotion of Capability
Edited by Ralf Rogowski, Robert Salais and Noel Whiteside
Chapter 11: Reflexive Labour Law, Capabilities and the Future of Social Europe
Simon Deakin and Ralf Rogowski INTRODUCTION This chapter discusses the role that reflexive labour law has played, and can play in the future, in the development of European social policy. The core of the reflexive law approach is an evolutionary conception of law which provides both an analytical framework for studying the operation and effects of European labour law, and a basis for the evaluation of European social policy. Reflexive approaches to law and governance have informed a number of initiatives over the past two decades, most notably the development of the open method of coordination in various contexts including that of employment policy. Their influence has not, however, been confined to ‘soft law’ measures, but has extended to the re-design of ‘hard law’ mechanisms including EU Directives and laws adopted at member state level. These reflexive initiatives, we will argue, have had some success in generating a learning process around the formulation and implementation of social policy, which has helped to re-legitimate labour law at EU and member state level, and has contributed to the adoption of new legal measures in areas which include work-life balance laws. In this regard, reflexive approaches have been complementary to efforts to construct a social right agenda around the concept of labour market capabilities. However, reflexive labour law operates in tension with pressures for the homogenisation of member states’ labour law systems which stem from a number of sources. These include the development of the European Court of Justice’s internal market jurisprudence in...
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