[This is the third in a series of three posts in which Joe Hayes and Pearl Ahrens translate Alexis Cukier’s “Exploitation, marxisme et droit du travail”, originally published in Contretemps. Revue de critique communiste. The original text is available here. The first two posts are available here and here.]
Two Contemporary Issues: The New Practices of Exploitation and Norms of the European Union
Consider a first example of a contemporary issue concerning the relationship between employment rights and exploitation: the juridical definition of the activities, enabled by online work platforms, of “crowdworkers”, these freelancers [travailleurs à domicile] who enact, often for very low remuneration, tasks over the internet “by the piece”, such as the transcribing of interviews.
Consider the case of the internet site Amazon Mechanical Turk, which presents itself as an “online labour market”, or, more exactly, “a market for work”: “we provide companies and developers with a flexible, on-demand workforce. The workers choose from thousands of tasks, and work according to their convenience.” [1] These tasks are very poorly paid, and only if they are successfully completed within a limited time. This type of new economic practice of exploitation–similar to those described as involving the “Uberization” of work–questions the relation between juridical subordination and economic dependence as a criterion for the juridical definition of an economic activity.
In this type of practice, the difficulty is especially in identifying who is the employer. Uber presents itself as a simple online application, and not as a private transport company, just as Amazon Mechanical Turk presents itself as a digital service for connecting people. But who, then, is the employer? The owners of these online platforms, the enterprises or private persons who define, command, and benefit from the work, or even the workers themselves who in France may have the status of self-employed persons? The very principle of an employment contract is put into question by new economic practices and extra-juridical factors, and the efficacy of employment rights is scrambled by the complexity of management strategies of enterprises that offer online services.
This dilution or circumvention of hierarchical subordination poses the problem of the juridical criteria of work at a new level, and two opposite strategies appear today. The most progressive jurists propose rehabilitating the criteria of economic dependence: it is the state of economic weakness and exploitation of workers through online platforms that justifies public intervention. Jurisprudence, however, relies above all on existing juridical tools and privileges organizational criteria, as used in redefining contracts in sub-contracting arrangements: an employment contract should exist where there is an “organized service” and unilateral determination of conditions of work, organized by a boss [donneur d’ordre].
However, the problem of respecting employment rights and identifying pertinent criteria (age of the worker, the number of hours, the worker’s qualifications, etc.) is aggravated here by the difficulty of identifying the payer-cum-employer. To use the terms of the “metastructural” analysis of Jacques Bidet, here is the germ of a victory of the market over the organization of employment rights–unless there is some radical, progressive reform–which appears powerless facing the new forms of exploitation in the so-called “sharing economy”.
A second contemporary concern is the relationship between domestic employment rights and supranational norms, especially European norms. It should be recognized that [French] labour law today constitutes only one of a series of multiple norms which concern workers and employers; those of the International Standard Organization (ISO), inter-professional norms (i.e. ISO 9000 for management), or sector-wide agreements (the IAFS for finance in Europe), for example. These norms today constitute the basis of discussions concerning “structural reforms” of labour law by the European Union and the IMF, which are redefined accordingly as “best practices”. [2]
To better understand what generates this process today, and therefore the European context of the El Khomri and Macron laws, it is first necessary to recall that communal rights are constructed with an ecumenical concern, aimed at surmounting the large differences between domestic juridical cultures. Thus, the notions of waged workers, work contracts, and work relations are purposefully left undefined in order to unify the labour market, and therefore to allow the worker to be a competitive economic agent within the entire European labour market. It is, then, not juridical subordination but the idea of economic exchange (the benefit of work for remuneration) which makes it possible for the mobility of the workforce and competition between enterprises to become central.
In a 1995 work titled Le droit du travail. Une technique réversible [Labour Law: A Reversible Technique] [3], Gérard Lyon-Caen summarized the risks that the European construction had already created for the French Code du Travail. [2] Against an expansion of progressive social rights was a regression to commercial rights; “the laws of the European community tend to establish a single market, subject to severe rules and tending to enforce free competition, shows the same destructive effect over rules characteristic of internal employment rights”. [4]
In his juridical analysis, the author provides a political critique which recognizes, following a popular success in France during the campaign against the Constitutional Treaty in 2005, that
the rules of the Single Market are beginning to be put into question, not only national labour legislation, but also the unified rights put in place by the International Labour Organization, which looks to ensure a minimum of protection in all countries. [5]
The author thus anticipates the possibility that French employment legislation will be subordinated to [absorbée dans] EU competition law, which it had initially striven to remain outside of.
But if in a general way, from the the point of view of France, European legislation manifestly constitutes a serious threat to an entire section of employment rights, as acquired by the workers’ movement, it is appropriate, at a higher level of generality, to also analyze the already mentioned ambivalence between employment rights and social rights at the European level.
Indeed, as Alain Supiot showed, the promotion of the logic of the labour market against domestic rules has led to the European Court of Justice adopting a broad definition of “worker” which “goes beyond only periods of actual work to include periods of professional training and searching for employment”. [6]
This is the case in the Unger judgment of 19 March 1964, which held that in regard to free circulation, all those in a member state who have benefited from social security should be considered waged workers, “partly because they previously possessed the quality of workers, and partly because they are likely to acquire again this quality”. [7] As Gérard Lyon-Caen notes (and Supiot refers to this), “the waged worker is thus characterized by the Court of Justice (of the European Union), not by the contract, but by profession; not only by the subordinated activity, but also by social security [couverture sociale]”. [8]
From this point of view, collective rights are clearly adjacent to social rights against contractual labour law, which seems only on first view to have advanced notably: according to the labour contract, it is above all the person and their personal biography that makes the waged worker as such. However, the European juridical technique that Supiot describes as an “insertion of a statute into a contract” has equally contributed to the extension of an abstract definition of work eclipsing labour laws that could, through national legislation, raise protections for specific, concrete work (intensity, risk, length, etc.):
This European manner of thinking of the work relation, as an insertion of a statute into a contract, has permitted the spreading of an empire of abstract work through favouring the unification of the waged worker statute, and the increasing dissolution of established distinctions in considering the concrete object of the performance [prestation] of work. [9]
We find again at the supranational level the contradictory relations between labour law and social rights. Just as the controversy around juridical criteria permit the qualification of new practices of economic exploitation as work, the analysis of the effects of European norms over the Code du travail thus shows that “employment rights have never been more traversed [parcouru] by contradictory forces, of unification on the one hand, and by of fragmentation on the other”, as Supiot summarized it. [10]
Conclusion
To conclude, I will inscribe these reflections on the relations between exploitation and employment rights within the framework of my book, which is currently being drafted and which examines the history and current state of political theorizing about the democratization of social relations as arising from labour, as done notably by Marx, Dewey, and Korsch, in certain of their texts.
The first part of this work questions the sense of “political expectations” that workers might have in regard to their work, and demonstrates the anti-democratic transformations of employment trials, and, more generally, the division and organization of work under neoliberal capitalism. The second part reconstructs, principally after Marx and Dewey, two theoretical models–class struggle and the extension of co-operative experiences–for conceiving relations between work and democracy. The third part analyzes some of those theories, experiences, and contemporary propositions with a view to the democratization of work, and a democratic project starting from work. It is in this framework that I examine the possible function of employment in such “democratic labour” in the transformation of social relations.
From this perspective, I return to the three basic options examined in this text: first, the criticism of bourgeois right, which corresponds to a strategy of the destruction of those institutions, especially juridical, which prevent the emergence of democratic work; second, the analysis of employment rights as a force of limitation on exploitation, to which corresponds a strategy of democratic transformation of institutions beginning, again, with work; and third, the perspective of a “socialist right”, to which corresponds a strategy of constructing oppositional [transversales] democratic institutions that would supposedly allow, in turn, the transformation of power relations in the enterprise.
We will examine only one specific version of this last position–that which Bruno Trentin develops in La Cité du travail. La gauche et la crise du fordisme [The City of Work: The Left and the Crisis of Fordism] [11]–which, as various preceding arguments have shown, must be critiqued.
In the last chapter of La Cité du travail, Trentin begins by recalling how the action of unions, social legislation, and jurisprudence have permitted “the reduction of the margin of arbitrariness and of discretionary power contained in the individual buy-sell contract; similarly [they have] permitted the reduction and the delimitation of the area within which exists the domination of the enterprise’s hierarchy over the worker”. [12] However, even if these conquests are certainly fundamental, there remains for Trentin an as yet unachieved revolution:
The fact is that, in the majority of cases, [those gains] are not translated into a new generation of individual rights, and they have not truly shaken the discretionary power of “the employer” in the determination of the object of work, nor the rules which preside the realization of relations of subordination in the concrete performance of work. [13]
For Trentin, the driving contradiction of labour law is that it distinguishes work, considered as a commodity, from the rights of citizens–and it is in internalizing these civic rights that it will be possible to go beyond the current situation, in which “the frontiers of democracy and the rights of citizenship are stopped at the threshold of the enterprise, before the ‘heart’ of the separation of the conflict between the governing and the governed”. [14]
We see the difficulty: while the author defends the political centrality of labour, it is citizenship and not work which, from the juridical point of view, ought to be the principle of workers’ emancipation. Using the term “Charter”, as employed by Marx in a previously cited passage of Capital, the author thus proposes
putting at the heart of reformist strategy a Charter of Rights, common values, and collective action–in society and in the state–towards promoting and enacting the exercising of these rights, and testing their implications for the non-written rules of civil life. This necessarily implies a redefinition of rights, responsibilities and of spaces of freedom, which should be protected in all forms of subordinated or heteronomous labour. [15]
The recommended path is thus the application of civic rights expanded into employment rights, so as to conquer spaces and moments of autonomous work.
While objecting to the “continuing, determined [assistée] deregulation” of work and social rights [16], we can doubt Trentin’s perspective–which, paradoxically, joins the third perspective reconstituted previously–that an enlargement of civic rights would enable, in turn, the institution of less alienated, less exploited labour. To return to the conjunctural difficulties posed by this model, it appears to pass over the political consequences of the Marxist thesis of the centrality of work: if exploitation in the capitalist mode of production constitutes the central obstacle for the expansion of democracy and the emancipation of individuals, then it is not rights of citizens in general, but employment rights–and their expansion into social rights, constructed on the basis of workers’ democratic rights–that ought to produce socially progressive legislation.
Such a movement has been manifestly crowned with some success in the twentieth century in Europe: it has involved, as we have seen, limiting exploitation through labour law, towards the enlargement, on that basis, of forms of democratic participation in decisions over individual enterprise and the whole of society. It is also this which Karl Korsch advocated in Arbeitsrecht für Betriebsräte: a juridical institutionalization of the political function of work, and of roles for workers in the political transformation of social relations. It is this method that I examine in the third part of my forthcoming work, especially the contributions and the limits of “a new waged-worker statute” of the CGT, and of the “professional social security” discussed by other unions.
In this text, through the discussion of specific propositions, I hope to have convinced readers of the need to question the ambivalent relations between labour law, civil rights, and social rights–a need which today appears especially during the course of discussions about the anti-progressive Code du Travail–and of the importance of this problem for conceiving, if not of non-exploited work, then at least of the already existing juridical bases that might be developed to limit certain exploitative economic practices, old and new.
[1] Amazon’s labour website. I here follow the analysis of Barbara Gomez, doctor of law and labour law specialist, in an intervention during the seminar “Economie et philosophie de l’exploitation”, on 22 February 2016, at the University of Nanterre.
[2] As seen in the “recommendations” of the European Commission, and as confirmed in an interview in June 2015 with Panos Skourletis, then Minister of Labour in Greece.
[3] Gérard Lyon-Caen, Le droit du travail. Une technique réversible (Paris: Dalloz, 1995).
[4] Lyon-Caen, Le droit du travail, 88.
[5] Lyon-Caen, Le droit du travail, 90.
[6] Supiot, Critique du droit du travail, 25.
[7] Supiot, Critique du droit du travail, 25.
[8] Gérard Lyon-Caen, Le droit du travail non salarié (Paris: Sirey, 1990), 80.
[9] Supiot, Critique du droit du travail, 33–34.
[10] Supiot, Critique du droit du travail, 34.
[11] Bruno Trentin, La Cité du travail. Le fordisme et la gauche (Paris: Fayard, 2012).
[12] Trentin, La Cité du travail, 402–3.
[13] Trentin, La Cité du travail, 403.
[14] Trentin, La Cité du travail, 413.
[15] Trentin, La Cité du travail, 416–17.
[16] Trentin, La Cité du travail, 429.
Joe Hayns is a student (University and College Union) and art industry worker (Independent Workers Union of Great Britain).
Pearl Ahrens learned French from her grandmother and has travelled in France and Switzerland. She lives in London.
[NB: Hayns and Ahrens translated all of Cukier’s extended quotations, and replaced all references to Presses universitaires de France’s edition of Le Capital (1993) with the corresponding passages in Ben Fowkes’ canonical translation of Capital (1976). They left the titles of all other sources untranslated.]
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