Towards a Comparative Theory of the Contractual Construction of Personal Work Relations in Europe
* Professor of Employment Law, University of Oxford, email: mark.freedland{at}law.ox.ac.uk
** Lecturer in Law, University of Reading, email: n.countouris{at}reading.ac.uk. The research project from which this article stems has been made possible by the generosity of the Leverhulme Trust in granting a Major Research Fellowship to Mark Freedland for the period of the academic years 2005–08. We also wish to acknowledge the very great benefit which we have derived from having been able to exchange ideas with, and having been allowed to read before publication papers written by, Simon Deakin and Catherine Barnard, especially the former's paper, ‘The Comparative Evolution of the Employment Relationship’, since published as Ch 5 of G. Davidov and B. Langille (eds), Boundaries and Frontiers of Labour Law (Hart, 2006) and their joint paper, ‘Redefining the Employment Relationship to Counter Employer "Evasion": the UK Experience in a Comparative Perspective’ (LSA Conference, Berlin, July 2007; an Italian language version is forthcoming in Lavoro e Diritto in the course of 2008)
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Abstract |
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This article seeks to build upon the earlier article ‘From the Contract of Employment to the Personal Work Nexus’ (2006) 35 ILJ 1, and further to substantiate the theoretical basis for our work on the European comparative law of personal work contracts. Two associated but distinct hypotheses are presented; the first one concerns ‘institutions’ and explores the ways in which the contract of employment has become and been a central institution of European labour or employment law systems, but an institution differently constructed and displaying normative diversity as between those different systems. The second hypothesis postulates a contrast in juridical methodology as between English common-law-based systems and continental European civil-law-based systems, the former being characterised by a ‘regulated self-designed contracts’ approach, and the latter by a ‘standardised contract typology’ approach. In conclusion, these two hypotheses are integrated into a composite tentative comparative theory, which, we argue, can usefully be related to the theoretical discourse about the ‘varieties of capitalism’ in Europe.