Solidarity, Labour, Law: Between Greece and Europe

img_1072-600x4481-600x448
by Emilios Christodoulidis and Alain Supiot • 28 May 2015 published at http://criticallegalthinking.com

Alain Supiot and Emilios Christodoulidis discuss the questions of solidarity and the protection of work in Greece.

Emilios Christodoulidis holds the Chair of Jurisprudence at the University of Glasgow.

Alain Supiot holds the Chair ‘Etat social et mondialisation: analyse juridique des solidarités’ at the Collège de France.

Emilios Christodoulidis* (‘EC’): Alain, thank you for joining me in this discussion over the urgent questions that Greece faces today, with special reference to the questions of solidarity and the protection of work. It is often repeated now that Greece has run out of options and it is painfully clear that in “negotiating” its future with its partners it is running out of road. The EU’s unyielding stance in its collision course with SYRIZA’s democratic mandate threatens to defeat both Europe’s project of solidarity and Greece’s of democracy. As the philhellene and sympathetic observer that I know you are, how might one begin to assess the prospects for solidarity and democracy in our ‘ever closer union’?

Alain Supiot* (‘AS’): The ideal of solidarity has enjoyed great prominence for over two centuries in our sociological and political imaginary but has only recently been adopted as a general principle of law by the Court of Justice and a fundamental right by the European Charter Certainly, at the European level, solidarity possesses nothing like the intensity it does at the national level.

It was at this latter level that solidarity developed via the many forms that the Welfare State assumed in each country after the Second World War in Europe. The problem with the European Union, as the German sociologist Fritz Scharpf rightly observed, is that it pushed for the dismantling of national solidarities without being able to build solidarity at the supranational level. This “cocktail” can be nothing but fatal for the project of the European Union, whose renunciation of all social ambition – in particular the objective of ‘harmonisation through improvement’ of social protection as stipulated in the Treaty (Art. 151) – is bound to ruin the little credibility and political legitimacy that it still enjoys.

To recognise that there are degrees of solidarity would allow it to re-​articulate solidarity at the local, national and continent-​wide levels. In the absen§ce of such an articulation, the European Union runs the risk of an explosion of conflictual solidarities on the basis of nationalist, religious, etc, identifications nurturing the contempt of the one side and the resentment of the other.

The evident design-​fault of the European currency union, for one, demands mechanisms – such as that of the parallel currency that would decouple the medium of exchange from the unit of account — that establish degrees of solidarity between the states of the Eurozone, rather than pursuing the spectre of the imposition of the economic and monetary model of Germany on the rest of Europe.

EC: I was particularly taken by your reference in a recent discussion about solidarity to its re-​conceptualisation as responsibility: you called it ‘responsabilité solidaire’. How might one make sense of solidarity as a duty — as opposed to the many ways in which responsibility is vacated, fractured or circumvented in public discourse — and on a legal register? Does the law provide a useful way to re-​establish the connection between the injurious action and the damage it produces?

AS: In its original juridical sense, dating from Roman law, solidarity was the term for what was effectively a technique of holding co-​responsible those who played a role in the generation of a certain risk. This meaning faded with the advent of the Social State which introduced the pooling of the risks of existence and gave solidarity the face of organisations, those of social security and public services, to which one contributed according to one’s resources and benefited according to one’s needs.

These organisations have taken over the function of traditional solidarities (familial, religious, professional) but have in their turn been challenged today, both for internal reasons (they stir up individualism by compensating for its effects) and for external reasons (the priority given to economic freedoms allows the most privileged to withdraw from their duty of solidarity, the payment of taxes and social insurance payments).

This decline of solidarity as an organisational form corresponds with its reemergence as a factor of responsibility. The ‘responsibility of solidarity’ (la responsabilité solidaire) is a remedy to the disconnection of power and responsibility that authorises, on a grand scale, the effacement of frontiers for commerce and the network organisation of the economy.

Beginning with the introduction of the accountability of enterprises for defective products, this remedy has been deployed in the most diverse domains; recourse to illegal work and posted workers; violations of health and safety regulations; violations of competition rules; fiscal corruption and fraud; marine pollution; failure to sanitise industrial sites etc.

This resurgence of the ‘responsabilité solidaire’, understood as joint liability, makes possible the holding to account of those who wield economic power for the social and ecological consequences of their decisions. It is in this sense that it would be possible to imagine that the banks that helped the Greek government in 2001 to ‘cook the books’ in order to enter the euro be judged today as jointly liable for the financial disaster that their fraudulent actions engendered. In the USA the Department of Justice does not hesitate to use this device to impose respect for American law on multinational companies: why would the same not hold in Europe, in which the power market vis-​à-​vis banks and multinational companies is comparable?

EC: It is interesting that our discussion returns frequently, not surprising given your oeuvre, to the protection of work. The deregulation of work in Europe and the neoliberal frenzy of that undertaking, backed by the European Court’s undercutting of the right to strike, syndicalism and social rights, is one of the most alarming of developments in Europe. It would not be an exaggeration to say that the full repertoire of deregulatory and punitive measures that Europe has devised in its grand course to dismantle labour protection, has been visited on Greek labour in the last four years.

Is it not the case that we face something of a denial of our (Europe’s) own heritage here? I am referring here to the vision of a Social Europe that once stood as one of its fundamental inspirations and gave leverage to the now ill-​fated venture to conceptualise a European identity. But I am also thinking of national economies. After the war, Germany generated economic growth through its practices of subsidiarity, worker representation on works councils and, at board level, through Mitbestimmung, the commitment to vocational training, etc: that is to say on the basis of democratic institutions established within the economy.

Is it not an oxymoron that the collapse of the democratic economy into what you would call ‘total-​market thinking’, misses that fundamental insight? Can we not in this sense glean two lessons from this? First, that a strong, might one even dare to say, competitive economy depends on key democratic and solidaristic features: the significant representation of the workforce in the corporate governance of firms and co-​determination of constitutive elements of production. Second, that the values of democracy and solidarity are irreducible and constitutive of both the meaning of work and of its collective organisation. Some of the greatest European achievements are premised on these commitments.

AS: That which may be called the foreclosure of human labour, that is to say its assimilation without remainder to that of the machine, dates in reality further back: it is a legacy of Taylorism, which was accepted equally in communist countries as it was in capitalist. This utopia of a scientific organisation of work inspired not only the organisation of enterprises but also that of states. The difference with the Fordist era is that today work is no longer conceived on the mechanical model of the clock but on the cybernetic model of the computer. One no longer expects the individual or the collective of workers to act in accordance to orders but to react to the signals they receive. This governance by numbers was well summarised by Ms Merkel when she declared on March 30: ‘Greece has a choice in what reforms it introduces, but in the end the figures have to add up.’

As was the case for Taylorism, this new form of the dehumanisation of work applies not only to the level of individuals or enterprises, but also to the work of nations, that is to say to their political economies. These are no longer understood as the unfolding of a political project but as reaction to the signals emitted by markets. One must distinguish here the ultra-​liberalism of the Anglo-​American variety and the Ordoliberalism of Germany. Ultra-​liberalism, such as that notably developed by Hayek, aimed to establish a global order self-​regulated through markets, which he termed catallaxy whereas Ordoliberalism rests on institutions guarding the proper functioning of markets in a given territory.

What they have in common, however, is to exclude from the domain of democracy the question of the distribution of work and of wealth. The influence of Ordoliberalism is one of the factors of juridical and economic resistance of Germany to the ultra-​liberal priorities of the EU authorities. It notably clarified the tensions that emerged with regard to the mission of the ECB and in relation to competing conceptions (the anglo-​american vs. the ‘Rhine valley’ model) of the enterprise.

This allows us to understand the particular type of governance by numbers to which the Eurozone is committed, with its ‘control figures’, or ‘chiffres de contrôle’, engraved in the treaties on the single currency and the Central Bank — guardian of pure monetary orthodoxy. Ordoliberalism, however, is the contemporary form of German nationalism and it is futile and dangerous to think about applying it to the whole of Europe to the detriment of the diversity of its cultures and national traditions.

This applies as equally to the German social model as it does to its monetary model. European solidarity must rest on the respect for the diversity of different traditions of which one must learn the history and respect the democratic expression. It is in allowing these traditions to flourish and to enrich themselves mutually and not by pretending to align the whole of Europe to one such tradition amongst them that one could still save the European project. The abysmal ignorance of Greek history and Greek culture in countries of the western Christian tradition (‘les pays de tradition romano-​canonique’) is from this point of view a case for particular consternation.

EC: You are of course right, and it would be wrong to assume that the Ordoliberal model could or should be generalised across Europe or across the divide between the economies of its North and South. What I had in mind is what one might call functional equivalents to that model, whereby democratic and moral categories are understood as intrinsic to and constitutive of how we understand the economy. In that respect, I wonder what to make of the insistent opposition of our European partners to the Greek Government’s plans currently underway for the re-​introduction of collective agreements.

The High Level Mission that visited Greece in 2011 on behalf of the ILO, the international organisation responsible for setting and monitoring labour standards throughout the world, reported on the ‘exponential’ rise in the use of part time and ‘rotation’ contracts, as well as the emergence of large numbers of ‘discouraged’ workers. I hear from friends who practice law in Athens that they have clients who are owed salaries of two years and are reluctant to challenge their employers for fear of losing their job. New contractual arrangements have seen wages and pensions fall by over a third of their value.

The concern is not only that wages established by collective agreements have been slashed but also that employers have now won the right not to pay collectively agreed wage rates if they can secure the ‘agreement’ of workers to accept less and to sign away minimum terms and conditions of employment. Overall, there has been an onslaught on workers’ rights to trade union representation and action in the face of what are clearly constitutional protections that surpass even the brutality of the IMF plan for the marketisation of Poland after 1989.

AS: From a strictly juridical point of view, since it is committed to upholding fundamental social rights, the new Greek government should clearly conform to international legality. Obviously I am referring here to the Constitution of the ILO and to international labour conventions ratified by Greece, but also to the EU Charter of fundamental rights and to the Social Charter of the Council of Europe. Apart from exceeding the competences of the Union (which, for example, has none in the matter of the determination of salaries or the organisation of social security) the directives of the Troika contravene these international social laws.

It is not surprising therefore that, having obeyed these directives, previous Greek governments have been found in violation by the institutions that safeguard these social laws (the ILO and the Council of Europe). Here, too, one might consider holding the components of the Troika jointly liable for the violation of fundamental rights to which they concurred.

A similar type of action was suggested recently in a study published in The Lancet providing evidence of the responsibility of the IMF in the Ebola epidemic. This study showed that the scale of this epidemic is directly imputable to the cuts that the structural adjustment programmes had imposed on the health budgets of the affected countries.

The attacks on syndicalist freedoms and on the rights to collective bargaining that you talk about are in equal measure serious and illuminating. They are particularly serious because they touch on the nucleus of international social legality, which emerged from the Constitution of the ILO and was unequivocally reaffirmed in the 1998 ‘Declaration of fundamental principles and rights at work’. These attacks are also particularly illuminating because they testify to the entrenchment in Europe of what Article 1 of the current Chinese Constitution judicially calls a ‘democratic dictatorship’.

In Europe this dictatorship has the face of financial markets but also, significantly, that of the decision-​making institutions which, in the manner of the Politburo, lack any democratic base and have been placed beyond all electoral control: the Commission, the Court of Justice and the Central Bank.

The German Constitutional Court addressed in 2010 the implacable fact of the juridical oxymoron that the democratic ideal, which the Treaty of Lisbon loudly proclaims to be foundational for the Union, is dissipated, confounded and defeated in the actual operations of the Union. The reduction of political democracy to electoral ritual without purchase on the economic domain is today taken for granted as fact.

The attitude today in Europe is to take notice of elections and referendums only to the extent that they respond to the expectations of the ruling class. It is an irony of history that the sole entities to clearly set themselves against this drift today are the German constitutional Court — guardian of a democracy built on the ruins of Nazism, and the Greek people, inventors of democracy. Faced with this castration of political democracy, social democracy is the only institution that still resists the advent of the total market. That is why labour law, which guarantees syndicalist freedom, the right to strike and collective bargaining, features today as the last obstacle to that which Mr Cameron calls the ‘global race’, that is the war of all against all.

This interview was originally published on the Can Europe Make it? section of openDemocracy.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s