The identity crisis of the labour law

AuthorRaluca Dimitriu
PositionLaw Department, Bucharest University of Economic Studies, România
Pages79-86
THE IDENTITY CRISIS OF THE LABOUR LAW
Professor Raluca DIMITRIU
1, PhD.
Abstract
Labour Law is dealing with a period of tr emendous cha nges, which may jeopa rdise its legitimacy. It may be
even true that labour law is living now its la st days, and only a possible ‘reinvention’ may lead to its survival. One of
the reasons for this crisis is found in the evolution of the relation of the labour law with the “mother” branch, civil law.
The paper is pr oposing an exam of the flexible relatio n between labour law and civil law and to r eact to the tendency of
the r eincorporation of la bour law in civil la w a nd of the danger s of such development. It is also p resented the impact
upon labour law o f the recent paradigmatic change of the civil la w, a nd some cr iteria for identifying the applicable
civil law norms to employment rela tions. There a re laid down a couple of conclusions r egarding the changing of la bour
law, as well as the uncer tain future of this branch of law.
Keywords: Bogus self-emplyment, labour la w, workers, labour relation
JEL Classification: K31
1. Preliminaries. Traditional labour law
From negation of all protection form2, to acceptance of protection in an exceptional manner,
followed by recognition of the need to derogate from the common law labour law arose as a result
of the need to regulate the labour agreement in a partisan manner, not in a equidistant manner like
in the civil law. Labour law intended to compensate a basic contractual disequilibrium in this way.
Traditional labour law was based on the fordist foundation of the labour relation. The
worker invests most of his adult life in the enterprise, which becomes an element of one’s identity.
He/she works during well-established working hours, on the premises of the enterprise, with his/her
work mates, with whom he/she sets up unions and other organizations, thus participating in
collective bargaining, strikes and social actions. This is the context where labour law was created,
made up of collective labour agreements concluded in this way, and of the legislation of minimal
standards of protection of the worker who has a disadvantage created by subordination towards
one’s employer.
The goal of the labour law was, depending on the political and conceptual orientation, social
peace, social egalitarianism, social justice, or democracy itself. Labour law indeed fulfilled a
function that is higher to the re-balancing of the contractual relations; it can be a social regulator.
The two statements: „work is not merchandise3 and the parties of the labour contract are
not equal in terms of negotiation power constitute the basis of the traditional labour law and it is
the ethic foundation of the intervention of the law in private relations and of the restriction of the
parties’ contractual freedom.
Contractual freedom a fundamental principle of the modern private law is consumed,
like any consumable merchandise, „during the first use”. However, labour is not produced in order
to be sold, like merchandise, and it is un-dissociable from the employee4; so the object of the
agreement cannot be separated from one of its parties. Consequently, through derogation from this
1 Raluca Dimitriu - Law Department, Bucharest University of Economic Studies, România, raluca.dimitriu@cig.ase.ro
2 “Social agreements cannot in clude advatanges for one party to the detriment of the other”. G. Plastara, Contractele civile specia le,
Ancora Publsihing House, 1911, p. 473.
3 This thesis was formulated within the Philadelphia Declaration of the International Labour Organization (1944). Some approaches
consider however that „labour is not a merchandise” is not a statement based on empirical reality, but a normativ statement („labour
should not be treated asa a merchandise”). See , B. Langille Labour Law’s Theory of Justice, in Davidov, G, Langille B. (coord.),
„The Idea of Labour Law”, Oxford University Press, 2013, p.106.
4 As mentioned, this is a consequence of the fact that labour is not merchandise. It is inseparable from the person who peforms the
work, impossible to store in a warehouse, impossible to increase its quantity, it is numerically determined and relatively difficult to
move. See , I.T. Ştefnescu, Tratat teoretic şi practic de drept al muncii, Universul Juridic Publishing House 2012, p. 13.

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