A comparative legal methodology

Author:Silviana Sciarra
Profession:Professor of Labour Law

1. National constitutional traditions. 2. Convergence of legal standards.


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1. National constitutional traditions

Before entering a more specific analysis, I will make a few observations which are also indicative of the methodology followed in this General Report.

I suggest that the most innovative solutions marking the evolution of labour law are to be found in legal systems characterised by the solidity of constitutional traditions. In most cases this argument goes as far as saying that constitutional rights, while being adaptable to changes in work organisation, still set a limit on deregulatory approaches in legal reforms, thus favouring creativity.

Such a rich heritage consolidated in European constitutional traditions emerges even more in comparison with the USA. It may suffice to say that sophisticated scholarly work in that country recurrently draws inspiration from European developments.8

It is also a fact that the evolution of constitutional law brings about innovative results in legal theory. This is yet another rich legal patrimony of Europe, both at a national and supranational level9, in which the importance of fundamental social rights is not always fully acknowledged.

In perspective, there are challenging ways to link together both the practice and the theory of fundamental social rights in comparative terms. The evolution of labour law in this field widens the angle of observation on EU law.

The search for differences - rather than for similarities - between legal systems is unavoidable at the present stage of European integration.The brief and yet very intense history of European labour law shows that, even in a multi-level regime of policy-making, European institutions refined their respect for national constitutional traditions and for the social partners as crucial actors in the law-making process.

2. Convergence of legal standards

A good guiding principle in capturing the most significant trends in the evolution of labour law is to study whether different legal measures reach a similar scope, albeit with different means.

A methodological challenge for comparative labour law is to understand whether or not the EU is providing an institutional set-up in which convergence of legal standards is occurring, while maintaining some differences untouched in national legal traditions.

It has been noticed that a less frequent recourse to harmonisation of hard law measures has, especially in the last few years, been compensated by coordination through soft law.10 Convergence thus occurs by choice of individual Member States and is seen by European institutions as a form of compliance not too invasive of national prerogatives. This tendency may be of interest for new Member States, since it aims at an extension - at times a modernisation - of exist-Page 10ing labour standards, not at the immediate introduction of new European legislation.11

The acceptance of the legislative status quo should not, however, indicate that there is no need to further legislate at EU level. This is a point of great relevance which will be explored throughout this Report and confirmed in the conclusions.

The comparative evaluation offered attempts to detect whether different legislative choices in similar labour law fields are creating an ideal environment for a closer integration of national legal systems.

In line with the previous and most authoritative comparative research,12 integration through law, even in a specific legal discipline like the one under observation in this study, is valued as a powerful tool in the hands of reformers -be they national or supranational - aiming at a closer Europe. Given the difficulty of measuring the level of compliance in the soft law environment of employment policies, awareness should be created about the great potentialities of positive integration in labour law reforms, particularly in labour market reforms. Otherwise, national administrations would only respond to the impulses coming from the centre by offering what was already part of domestic political agendas.

Very little integration through law would occur, should this be the practical result of preferring soft law procedures and leaving hard law silent. A variable degree of integration would, under such circumstances, be entirely dependent on the political orientation of national governments, choosing to select the same priorities and seeking to pursue them in a similar legislative style.

Hard law measures, on the contrary, have forced similar changes in national legal systems. Even when national legislatures transpose European directives following very different paths, a floor is offered for the integration of basic common principles.

In highly controversial fields, such as in reforming labour markets and introducing new types of employment contracts, original contributions added by national legislatures may create cases of uncertain compliance with EU law, mainly in relation to the lowering of existing national standards.

While pursuing the task of interpreting - rather than measuring - national performances, comparative labour law cannot isolate itself from the institutional debate taking place in the EU.

The discussion on fundamental social rights, first related to the Nice Charter13 and now to the Treaty establishing a Constitution for Europe, highlights some relevant points to be complemented by a comparative assessment of constitutional developments at national level.

This will be the main theme dealt with in the next section and a good way to start looking at national labour law.


[8] See J. Konaghan, R. M. Fischl, K. Klare (eds.), Labour Law in an Era of Globalisation.Transformative Practices and Possibilities, 2002, OUP, Oxford. See also Dunlop Commission, the Final Report available at: http://www.ilr.cornell.edu/library/downloads/keyWorkplaceDocuments/DunlopCommissionFutureWorkerManagementFinalReport.pdf

[9] A recent example of a current European debate is: C. Joerges,Y. Meny and J. H.H. Weiler (eds.), What kind of Constitution for what kind of policy? Responses to J. Fischer, 2000, Robert Schuman Centre for Advanced Studies, EUI, Badia Fiesolana.

[10] D.Ashiagbor, 'EMU and the Shift in the European Labour Law Agenda: from "Social Policy" to "Employment Policy"', (2001) 7 European Law Journal 311; F. Scharpf, 'The European Social Model: Coping with the Challenges of Diversity', (2002) Max-Planck Institute for the Studies of Societies Working Paper 02/8; D. M.Trubek, L. G.Trubek,'Hard and Soft Law in the Construction of Social Europe', (2003) Paper prepared for the presentation at the SALTSA, OSE, UW Workshop on Opening the Open Method of Co-ordination, European University Institute, Florence, Italy; C. Barnard,'Flexibility and Social Policy' in: G. de Búrca, J. Scott (eds.), Constitutional Change in the EU From Uniformity to Flexibility?, 2000, Hart Publishing, Oxford, Portland, Oregon, pp. 197-217.

[11] S. Sciarra,'Convergence of European Labour and Social Rights - Opening to the Open Method of Coordination' in: G. Berman and K. Pistor (eds.), Law and Governance in an Enlarged Europe, Hart Publishing, forthcoming. 12

[12] M. Cappelletti et al, Integration through Law: Europe and the American Federal Experience: Consumer Law, Common Markets and Federalism in Europe and the United States, 1987, Walter de Gruyter, Inc, Berlin; F. Snyder (ed.), Constitutional Dimensions of European Economic Integration, 1996, Kluwer Law International,The Hague, London, Boston.

[13] Charter of fundamental rights of the European Union (2001), Office for Official Publications of the EC, Luxembourg, O.J. C 364 of 18.12.2000.