2.3.1. Introduction
This section focuses on the theories of Hugo Sinzheimer,162 Otto Kahn-Freund, Francesco Santoro Passarelli and Gino Giugni, who in different times and contexts focused on the relationship between collective labour relations and the law. The theories elaborated by the four scholars are particularly interwoven: Sinzheimer, who operated in the Weimar Republic, influenced the draft of the Constitution of Weimar by coining the formula Wirtschaftsverfassung (‘economic constitution’) in order to stress the need for giving legal recognition to the emerging socio-economic phenomenon of collective labour relations. He was the mentor of Kahn-Freund, who applied the conceptualisation made by Sinzheimer to a different context – namely, Great Britain, where he had sought refuge after the Nazi take-over of Germany.163 Here, however, Kahn-Freund distanced himself from the statutory regulation of collective labour relations developed in the Weimar Republic, in which he foresaw the precondition for the emergence of a totalitarian regime, and elaborated the theory of collective laissez-faire. Like Flanders and Clegg, Kahn-Freund also participated as labour law expert in the Donovan Commission set up by the British government in 1968 with the aim of assessing and revitalising the state of industrial relations.
Similarly, the theory of autonomia collettiva privata (collective private autonomy) elaborated by Santoro Passarelli was particularly influential on Giugni’s conceptualisation of collective autonomy as ordinamento intersindacale (inter-organisations system). Both scholars were particularly influential in the legal and political developments and evolution of the Italian system of collective labour law and industrial relations, and both shared the concern of avoiding any returns to a totalitarian and corporatist system. Santoro Passarelli’s theory has influenced the activity of judges by offering a theoretical escape from the need to refer to the provisions of the corporatist labour code, which were not eliminated after the fall of
162 Due to linguistic reasons, the work of Hugo Sinzheimer has been studied via secondary sources rather than his original works. The analysis is therefore based on the works of Kahn-Freund, who was Sinzheimer’s pupil, the recent work of Ruth Dukes, and others.
163 See Ruth Dukes, “Otto Kahn-Freund and Collective laissez-faire: An Edifice without a Keystone?”
(2009) 72 The Modern Law Review, 220–46, 230. The method of analysis of Kahn-Freund was in general deeply and widely comparative, see Ray Lewis, “Method and Ideology in the Writings of Otto Kahn-Freund” in Lord Wedderburn, Ray Lewis & Jon Clark (eds), Labour Law and Industrial Relations: Building on Kahn-Freund (Clarendon 1983) 107–26, 110.
the regime.164 Gino Giugni, instead, actively contributed to the development of the collective labour law and industrial relations system, first by participating as labour law expert in the draft of labour law legislation and later as Minister of Employment by encouraging and achieving cooperation between the labour market parties.165 Moreover, Giugni advanced the academic debate on industrial relations by disseminating the theories of leading US industrial relations scholars in Italy.
Finally, Kahn-Freund and Giugni also had the chance to work together by participating in the Comparative Labour Law Group set up by Kahn-Freund himself.166
Hugo Sinzheimer elaborated his theory during the years of the Weimar Republic, when the collective dimension of labour relations was emerging and receiving a comprehensive legal translation.167 Although having grown up in Germany and having been taken under Sinzheimer’s wing, Kahn-Freund was fascinated by the British context in which trade union recognition and collective bargaining were established and grew autonomously with little involvement on the part of the law.168 Santoro Passarelli conceived of collective labour organising as the expression of social groups that organise themselves in order to defend and pursue their interests.
However, he was convinced that those organisations should find their legitimacy in the legal order of the State – as for instance in the principles of freedom of trade union organising and trade union pluralism enshrined in the Italian Constitution.169 Although also convinced of the social origins of labour organising and collective bargaining, Giugni grounded his theory of an autonomous ordinamento intersindacale on the observation of the progressively increasing gap between the reality of labour relations and the constitutional and private legal norms concerning
164 Initially, the Act abrogating the corporatist system, one of the first acts adopted after the fall of the fascist regime, R.D.L 721/1943, explicitly preserved the norms of the civil code on corporatist systems in order to protect those corporatist collective agreements in force. Nowadays, those provisions have not been officially abrogated but the Constitutional Court has declared them inapplicable.
165 Gian Primo Cella, “Il cammino del pluralismo: Giugni e le relazioni industriali” (2007) 114 Giornale di diritto del lavoro e di relazioni industriali, 273–91, 280.
166 Benjamin Aaron, “The Comparative Labor Law Group: A Personal Appraisal” (1977) 2 Comparative Labor Law & Policy Journal, 228–37; Otto Kahn-Freund (ed), Labour Relations and the Law: A Comparative Study (Stevens 1965).
167 See Otto Kahn-Freund, “Hugo Sinzheimer 1875–1945” in Otto Kahn-Freund (ed), Labour Law and Politics in the Weimar Republic (Basil Blackwell 1981a) 73–107.
168 Kahn-Freund’s attention to the social history in relations with the legal and legislative developments was of course captured by the British context in which trade unions developed before political parties and their recognition was achieved before the universal male franchise, see Lord Wedderburn, “Otto Kahn-Freund and British Labour Law” in Lord Wedderburn & Lewis & Clark (1983) 29–80, 36–37.
Later, Kahn-Freund reconsidered the rationale of a system in which the trade unions had little control over the actual dynamics of labour relations at the workplace level. His disillusionment with the British system of industrial relations emerged in tandem with his involvement in the commission that elaborated the 1968 Donovan Report, see Hugh A. Clegg, “Otto Kahn-Freund and British Industrial Relations” in Lord Wedderburn & Lewis & Clark (1983) 14–28, 23; Kaufman (2004) 383.
169 See Francesco Santoro Passarelli, Contratto collettivo e norma collettiva (Il foro Italiano 1949).
industrial relations.170 In this evolution, he recognised the autonomous bases for the self-regulation of the industrial relations system.
2.3.2. Juridicity and juridification of collective labour relations The intrinsic regulatory nature and normative power (juridicity) of collective labour relations, as well as the need for the legal order of the State to regulate these social phenomena (juridification), constitute the departure point of the labour law theories and the key elements of comprehensive theory on collective autonomy. Already Sinzheimer had recognised the rule-making power stemming from the coordinated action of organised social groups. He affirmed that the creation of law is not an exclusive prerogative of the State.171 Rather, he recognised the normative power of industrial relations actors as a fundamental factor in order to re-establish the equilibrium between the subjects involved in the employment relationship.172 This autonomous power of the organised groups representing capital and labour is also central to the theory of collective laissez-faire elaborated by Kahn-Freund, who considered socio-economic reality as prior to the legal reality.173 The juridicity of industrial relations ought to be acknowledged by the State, but the latter should not excessively juridify their dynamics.
For Santoro Passarelli, the collective private autonomy emerges from the relationship between private associations pursuing collective private interests. As private associations, however, the trade unions derive their legitimacy from the authority of the State’s order. Their autonomy is given by the State and it is exercised within the boundaries of the State’s legal system through the conclusion of a contract.174 In his theory, the juridicity of collective labour relations is
170 This gap has been defined as a ‘legislative deficit’ or an ‘insufficiency of the legislation’, see Giovanni Tarello, Teorie e ideologie nel diritto sindacale. L’esperienza italiana dopo la Costituzione (Edizioni Comunità 1967) 84.
171 Kahn-Freund in Kahn-Freund (1981a), 80. The formation of norms in society and the normative power of collective social groups is a key concept in the work of Sinzheimer, who transposed this observation to the labour and industrial relations spheres, see Georges Gurvitch, Sociology of Law (Treubner 1947) 150–51.
172 Ruth Dukes, “Constitutionalising Employment Relations: Sinzheimer, Kahn-Freund, and the Role of Labour Law” (2008) 35 Journal of Law and Society, 341–63, 346–47. Sinzheimer was inspired by the Marxist theorisation of the human bodies of the workers as the object of economic exchange in the employment relationship, see Jon Clark, “Towards a Sociology of Labour Law: An Analysis of the German Writings of Otto Kahn-Freund” in Lord Wedderburn & Lewis & Clark (1983) 81–106, 82.
173 See Otto Kahn-Freund, Labour Law: Old Traditions and New Developments (Clark & Irwin 1968) 3.
174 In this sense, the theory of collective private autonomy distances itself from the provision of the Italian Constitution intending to elevate the status of the collective agreement as the source of regulation in the employment field, see Edoardo Ghera, “L’autonomia collettiva e le trasformazioni del diritto sindacale: da Francesco Santoro-Passarelli al pluralismo ordinamentale” (2009) 23 Lavoro e Diritto, 351–71, 356.
subordinated to the recognition made by the State’s legal order – therefore by their juridification. The juridicity of collective labour relations and the normative power of the organised socio-economic groups is the cornerstone of the theory elaborated by Giugni.175 By observing the Italian context, Giugni noted that, despite the presence of a constitutional norm indicating how collective bargaining should be pursued (Art. 39 Const., see also Section 3.2.2), the practice went in a different direction. The actors of the system established autonomous practices of sectoral and workplace collective bargaining through self-established bodies, such as the commissioni interne (internal commissions) or consigli di fabbrica (works councils).176 For Giugni, this provided the evidence that industrial relations are a dynamic arena, whose elements cannot be entirely understood in legal terms by simply referring to private law institutions.177 Such considerations brought Giugni to conclude that the evolutionary and spontaneous features of industrial relations cannot be constrained by pre-existent legal categories, and the legal institutions provided by the State’s legal system are not capable of incorporating all expressions of collective autonomy.178
He demonstrated this feature of collective labour relations through the use of a methodological tool, namely, the concept of ‘primal legal order’ (ordinamento giuridico originario).179 This concept was developed by Santi Romano in order to describe in legal terms the normative power exercised by systems other than the State. As a constitutional lawyer and legal theorist, Santi Romano was particularly concerned with the problems related to the relationship between the State and other subjects in terms of the production of norms. Romano initially saw the emergence of professional groups – or corporatist organisations – in the socio-economic realm as undermining the supremacy of the State in terms of legal production and sovereignty over private relationships.180 However, he considered the State to be
175 Giugni was also part of the comparative labour law group set up by Kahn-Freund (see Aaron (1977) 228–37) and contributed to several collective works organised and edited by the German scholar, see for instance Otto Kahn-Freund (ed), Labour Relations and the Law: A Comparative Study (Stevens 1965).
176 For an overview of the bodies of employees’ representation autonomously established in the early years of the Italian system of industrial relations, see Aris Accornero, “Dai consigli di gestione ai consigli di fabbrica” in Alceo Riosa (ed), Lezioni di storia del movimento operaio (De Donato 1974) 229–46.
177 Gino Giugni, Introduzione allo studio dell’autonomia collettiva (first published 1960, Giuffrè 1977) 106.
178 Giugni (1977) 88.
179 Gino Giugni, “Il diritto sindacale e i suoi interlocutori”, in Gino Giugni, Lavoro, legge, contratti (Il Mulino 1989) 183–220, 205.
180 In this context, according to Romano, the State lacked the legal instruments needed to fill the gap created by the progressive divergence between the social and the legal realities. The (relatively new) State was therefore experiencing a time of crisis. See Romano (1969) 5–26.
just one of many existing legal orders.181 In his view, a legal order comprises a complex system of norms having a social foundation and an internal and definitive organisation. In this sense, Romano adopted the term ‘institution’ to describe a legal order and to highlight the contextual existence of several legal orders.182 Although mainly referring to the Church and the international law/international community, Romano also pointed to the professional organisations, as well as to the relationships between workers and employers, as examples of the coexistence of other legal systems alongside that of the State.183 The theory of the plurality of legal orders elaborated by Santo Romano allowed Giugni to conclude that collective labour relations are a self-functioning system that is autonomous from the State, whose legitimacy stems from internal elements.184 Accordingly, Giugni departed from the observation that the legal reality is not limited to the exercise of the coercive power of the States to conclude that every system equipped with a basic rule on the production of norms is a closed and self-sufficient legal system,185 formally ignoring the coexistence of other legal orders.186 These assumptions enable the definition of the phenomenon of collective autonomy as an autonomous normative system. The juridical features of the inter-organisations system refer to the presence of rules on the production of norms (the collective agreement), a sanctioning mechanism (the strike), and a space in which those rules apply (the company or the plant).187 The understanding of collective labour relations as collective autonomy is therefore based on the normative power recognised and attributed to the parties of those social relationships, whose legitimacy stems from internal elements.
2.3.3. The collective interests of the collective bargaining parties The labour law theorists considered here agree on recognising the satisfaction of the collective interests of their members as the condition that allows organised social groups to engage in normative mechanisms such as collective bargaining, whose engine is the divergence of the collective interests of the parties – and thus their conflict. For instance, the ‘economic Constitution’ envisioned by Sinzheimer and
181 For Romano, those theories deeming the State to be the only source of law are anti-historical, because they are oblivious to the existence of the law before the emergence of the State as a historical form of organisation, see Romano (2013) 97.
182 See Romano (2013) 46.
183 Romano (2013) 115 (my translation).
184 Giugni (1977) 16.
185 Giugni (1977) 50.
186 Giugni (1977) 54.
187 Giugni highlighted that the corporatist experience instead eradicated the trade unions from the space of the factories, see Gino Gugni, “Esperienze corporative e post-corporative nei rapporti di lavoro in Italia” in Giugni (1989) 27–43, 29–30.
put into practice in the short life of the Weimar Republic aimed at ensuring the material conditions for the equilibrium between the interests of capital and labour in the economy.188 The ‘collectivistic system’, as defined by Kahn-Freund, was grounded on the equilibrium between employers and employees as social groups,189 ensured through a complex and hierarchical system of workers’ councils organised at district level according to sectoral criteria.190 In the ‘economic constitution’, the workers were industrial citizens actively participating in economic and political life through a capillary system of representation.191 In the practice, however, the Weimarian system of works councils evolved towards mechanisms that Kahn-Freund described as instruments of control over the employees.192 Precisely this development was emphasised by Kahn-Freund to reaffirm the inherent existence of a disequilibrium in the employment relationship within the capitalistic economic system because of the employers’ control over the means of production.193 For Kahn-Freund, the Weimarian works councils became the machineries for welding the workers’ and the employers’ interests in the name of their contextual contribution to the wealth of the national economy. He denounced this development, in which he saw the ideological root of the fascist state, whose vision of a society based on ‘pre-established harmony’ does not imply pluralism in the different spheres of social, economic and political action.194 In non-autonomous collective labour relations there is no space for divergent interests between the parties, since this would hamper the achievement of social harmony.
Workers and employers represent two different social groups in society, which are bearers of opposite interests that cannot be subsumed into the one of the company.195 Nevertheless, Kahn-Freund acknowledged that ‘[t]here is, however, one interest which management and labour have in common’: namely, that ‘the inevitable and necessary conflicts should be regulated from time to time by reasonably predictable procedures, procedures which do not exclude the ultimate
188 Dukes notes that Sinzheimer conceived of economic democracy as inherently complementary and supplementary to parliamentary democracy. In other words, the latter could not be achieved without the former, see Dukes (2014) 18.
189 However, Kahn-Freund stressed the inherent existence of a natural disequilibrium in the employment relationship within the capitalistic economic system because of the employers’ control over the means of production, see Otto Kahn-Freund, “The Changing Function of Labour Law” in Kahn-Freund (1981b) 162–92, 169–72.
190 Dukes (2008) 349.
191 Michel Coutou, “With Hugo Sinzheimer and Max Weber in Mind: The Current Crisis and the Future of Labor Law” (2013) 34 Comparative Labor Law & Policy Journal, 605–26, 608. Also, Dukes, in Davidov & Langille (2013), 57–68, 59–61.
192 Otto Kahn-Freund, “The Social Idea of the Reich Labour Court” in Kahn-Freund (1981c) 186–87.
193 Kahn-Freund in Kahn-Freund (1981b), 169–72.
194 Otto Kahn-Freund, Labour and the Law (2nd edition, Stevens & sons 1977) 16.
195 Otto Kahn-Freund, “Industrial Democracy” in (1977) 6 Industrial Law Journal, 65–84, 76. See also Paul Davies & Lord Wedderburn, “The Land of Industrial Democracy” (1977) 6 Industrial Law Journal, 197–211, 198–99.
resort to any of those sanctions through which each contending party must – in case of need – assert its power’.196 The conflict is the generator of social regulation aimed at putting an end to the conflict itself.197
The theorisation of collective autonomy as private autonomy is grounded on the recognition of conflictual (collective) private interests. Santoro Passarelli defines the collective interest (interesse collettivo) as ‘the interest of a collective group of persons to achieve a benefit able to satisfy a common need’.198 It is the combination or the synthesis – but not the sum – of the individual interests.199 The exercise of collective autonomy is carried out for the achievement of the collective interest of the group, which is primarily a general, indivisible, and private interest concerning the economic benefit of the social group. It can be achieved and satisfied only collectively and it can be expressed by any collectivity of persons (even a temporary and occasional collectivity), but well-delimited in order to be distinguished from the general interest.200 In the sphere of labour, the primary collective interest is the regulation of the ‘competition’ among workers and employers in the labour market.201 Yet the theory of private collective autonomy emphasises that a genuine collective interest only emerges on the workers’ side, which concerns freedom and dignity in employment. Whereas the private interest of the employer in maximising profit can hardly be dissociated from an individual dimension.202 Its collective nature derives from the recognition of the employer as such as a collective entity.
The private nature of trade unions as expressions of the plurality of collective interests of different social groups represents both the conceptual achievement of the private collective autonomy theory and the logical premise of the inter-organisations system theory by Giugni.203 The ordinamento intersindacale is indeed grounded on the recognition of the social nature of collective labour relations, which determines an autonomous system ruled by the self-government of the social powers represented by the collective associations of workers and employers. The
196 Kahn-Freund (1977) 16.
197 Kahn-Freund affirms that ‘[i]n labour-management relations conflict is very much the “father of all things”’, Otto Kahn-Freund, “Intergroup Conflicts and their Settlement” (1954) 5 British Journal of Sociology, 193–227, 195.
198 This is the definition elaborated by Francesco Santoro Passarelli, Nozioni di diritto del lavoro (Jovene 1991) 47 (my translation).
199 Mattia Persiani, Saggio sull’autonomia privata collettiva (Cedam 1972) 26.
200 Tarello (1967) 30–31.
201 Santoro Passarelli (1991) 29.
202 According to this view, only the collective interest of the workers shall find legal protection as such in the legal order. Persiani notes that such a differentiation is present in the constitutional text, where Art. 36 Const. on the right for the worker to a just and fair remuneration ensuring a dignified life is juxtaposed to Art. 41 Const. on the freedom of enterprise, which, for its part, implies the constitutional recognition of a patrimonial interest of the employer. See Persiani (1972) 60.
203 Edoardo Ghera, “Il contratto collettivo fonte nella dottrina” in Studi in onore di Tiziano Treu.
Lavoro, istituzioni, cambiamento sociale (Jovene 2011) 287–306, 291.
relationship stemming from the conflicts of interests arising in the labour market between these subjects creates a system that is autonomous from the legal order of the State.204 Therefore, the theory proposes to look at ‘the living law’, which is the law emerging from conflict and which is formalised in the (temporary) equilibrium of interests established by the social powers through the conclusion of collective agreements.205
2.3.4. The socio-legal nature and function of collective bargaining and collective agreement
The acknowledgment of the normative power of the organised groups representing capital and labour represents the conceptual basis for the socio-legal nature of the collective agreement. The collective agreement is the outcome of the process of collective labour relations aimed at finding a compromise between the collective interest by setting both rules for the reciprocal relationship between the parties and the working and employment conditions that shall be applied in the individual employment relationship.
In Sinzheimer’s theory, although autonomous, the economic and social actors are hierarchically subjected to the power of the State, which ought to maintain primacy over the self-regulation of employment, whose legitimacy depends on the State itself.206 The State should facilitate the exercise of the social power of normative production enjoyed by organised capital and labour.207 Its ultimate role is to shape and define the boundaries of the sphere of the collective social groups, whose normative power becomes effective once it has received the legitimation via the State’s legal system.208 Through the recognition of the legal value of the collective agreements, the Weimar Reich recognised their social function as an instrument for settling the conflict.209
204 Gino Giugni, “Il diritto del lavoro e i suoi interlocutori” (1970) Rivista di diritto e procedura civile, 369–405, 391.
205 Giugni (1977) 13. The theory has been interpreted as focusing on the gap between the ‘living law’
emerging autonomously within the space of the plant and the State’s norm, which is absent aside from the non-applied constitutional provisions, see Tarello (1967) 89.
206 Dukes (2014) 24; Sandro Mezzadra, “Lavoro e Costituzione nel laboratorio Weimar. Il contributo di Hugo Sinzheimer” (2000) 23 Scienza e Politica, 21–43, 34.
207 Martine Le Friant, “Collective Autonomy: Hope or Danger?” (2013) 34 Comparative Labor Law
& Policy Journal, 627–53, 632. As Dukes put it, according to Sinzheimer ‘the primary goal of labour law could rightly be described as the facilitation of the autonomous regulation of employment relations and working life by collectivized labour and employers or employers’ associations’, see Dukes (2014) 23.
208 See Dukes (2008) 347.
209 Kahn-Freund in Kahn-Freund (1981b), 180.