Problem definition, regulatory logics and the incoherence of politics

Monday’s schedule included a well-organized forum held at the new Centre for Law in the Contemporary Workplace (I attended by videoconference). The discussions centred on the issues raised by the Supreme Court’s decision in Fraser, especially the extent of the constitutional protection for collective bargaining under the Charter of Rights and Freedoms.

Fraser‘s relevance to my own research derives not only from its focus on freedom of association, but on the Court’s increasing reliance on international labour law. As has become typical of discussions of this issue since the release of the BC Health Services decision, the most controversial comments came from Brian Langille, law professor at the University of Toronto. Without getting into too much detail, Langille’s criticisms (and his indictment of the majority was scathing) reiterated two themes of his recent work. First, he suggested that the court had lost sight or failed to correctly answer the fundamental question: “what is it we are trying to do?” Second, he suggested that the court did a bad job of two forms of derivation, both the transposition of international responsibilities into constitutional commitments and the translation of constitutional principles into constraints on government law-making.

When it comes to international labour law, I think there’s a deep problem with Langille’s approach. His criticisms share a basic premise with formalist approaches to law, namely that rules can be correctly derived from higher-level principles; and that these principles can also help resolve conflicts between rules whose application would be in conflict in specific cases. Now, the original critique of this claim from the critical legal studies movement was that such derivation is non-deterministic: that there is no politically neutral, logically coherent process by which legal conclusions can be drawn regarding the application of principles in specific situations. However, it is not this claim which concerns me – even most “crits” have retreated from this version of the claim – but rather a precondition for its possibility. What bothers me is that in some cases, it is not the interpretations of the principles which are contested, but the principles themselves.

Lawmaking, after all, is a political process. The players and participants in the process want different things. In a review of Bauer, Pool and Dexter’s 1964 study of the political process surrounding antebellum US trade policy,[1] Theodore Lowi notes an important finding:

The outcome depended not upon compromise between the two sides in Congress but upon whose definition of the situation prevailed. If tariff is an instrument of foreign policy and general regulation for international purposes, the anti-protectionists win; if the traditional definition of tariff as an aid to 100,000 individual firms prevails, then the protectionists win.

The advantage of Langille’s framing of the question – “what are we trying to do?” – is helpful insofar as it sets aside debates between formalism and functionalism, and implicitly sides with those who see no divide between principle and policy: both are cast simply as a matter of what the law is meant to do, and how it ‘works’ to accomplish that task. Once the problem has been defined and the successful policy choice promulgated into law, legal adjudication and administration can be made to cohere on the basis of a purposive interpretation of the resulting rules.

Unfortunately, purposive interpretation in international labour law is not so easy. I have spent much of the last week scanning the record of the last ten years of discussions at the ILO’s Governing Body, regarding the reform of standards and supervision processes. These are discussions of process, mind you, not discussions leading to actual international standard-setting. What these discussions reveal is unsurprising: action being taken and rules amended despite the absence of any consensus about problem definition. Without compromise at the level of problem definition – except for an agreement not to agree – the unfortunate result is a set of processes which reflect multiple, often incoherent logics. Each party tries to convert their interest into a principle, but neither principle prevails.

Such conflict of problem definition is just as likely to be reflected in international labour standards. While it is true that the ILO Constitution sets out high-level normative aims, the relevance of international regimes relies on their possession not only of a goal, but also an operative logic, i.e. an understanding of how specific norms will be realized by the policy or standard in question. Reading those Governing Body decisions has made clear to me that the resulting rules or procedures may actually embody conflicting norms which are inherent to the system, not accidental; the high-level aims may be purposefully vague and multivalent; and the resulting institutions may rely on multiple, incoherent logics. What a ‘correct’ derivation from the resulting texts might look like, in this type of situation, is without question a non-deterministic inquiry.

[1] The book is Raymond A. Bauer, Ithiel de Sola Pool, and Lewis A. Dexter, American Business and Public Policy: The Politics of Foreign Trade (New York, Atherton Press, 1963); the review is Theodore Lowi, “American Business, Public Policy, Case-Studies, and Political Theory” (1964) 16:4 World Politics 677

I suppose that’s a profession I would like to be a part of…

Even if it is not immediately recognized as such, Law, as it is idealized by the new law student, is the philosophy of state power. Not in the explanatory sense of political science, but quite literally the philosophy which the state itself cleaves to in the exercise of that power. The idealistic among these students will join the ranks of the profession in the hopes that they might take part in contributing to this philosophy their own prejudices, fantasies and ires. But no matter how beneficial the edifice of the law or how lofty one’s principles, a tenuous bargain is involved in entering the walls of law’s empire, and it is one which should not be accepted lightly.
One is of course aware of the role of the professor to, as it were, continually attempt to expose the tears in the wall between the philosophy of the state and philosophy proper, that is, the human philosophy of everyday life. But so too is it the job of the law student. And, if one is fearless in their thinking; if one can escape from the work-a-day practices of the profession which result, if without conspiracy, at distracting from this question; if one is willing to risk, which is not to say sacrifice, the comfort and security of professional certainty and relative class privilege, then so too can this be the role of the working lawyer. The job of the law professor, then, is not just to expose the breach. It is to put the pick in the hands of the profession itself.

Flexibily or Arbitrarily?

How should those charged with applying the law administer it?

From a 2006 article on Latin American approaches to labour inspection, Michael J. Piore and Andrew Schrank hint at a fascinating approach to regulatory decision-making we like to pretend is impossible in Canada:

The flexibility of the Latin model in particular contradicts the image of labor-market regulations as bad for business. A telling example comes from our interviews with inspectors in France, where the Latin model originated but where it is currently under attack for its alleged rigidity. One inspector discussed his approach to the limitations on the use of temporary help and gave as an example the case of a large firm that he knew to rely excessively on temporary employees. He also knew, however, that it had an informal agreement with its unions to periodically move a certain number of temporary workers onto its permanent payroll, and in light of this agreement he simply ignored the temporary-help violations. His reasoning, he explained, was that the goal of the temporary-help restrictions was to expand permanent employment, and he thought he would be unable to obtain more permanent jobs by enforcing the existing regulation than by tolerating the admittedly illegal informal arrangement with the union. The law, he pointed out, is a means, not an end in itself.

My friend Sean is an ardent opponent of laws which are selectively enforced. He uses the example of drug laws which end up being applied so that the aggregate result is obviously racist. So where’s the middle ground? There’s a PhD thesis in there just waiting to be written.