International Union Rights

PHILOSOPHY OF TRADE UNIONRIGHTSl~l HABERMAS Habermas and the European Social Dialogue: Deliberative Democracy as Industrial Democracy? Accordingto Habermas's famous formulation ofthe discourse principle, only those normsare validto whichall possiblyaffected persons could agree as participantsin rationaldiscourse RUTH DUKES and EMILIOS CHRISTODOULIDIS Jürgen regarded socialtheorist Habermas as the and most is public a German influential intellectual, philosopher, theorist widely of Jürgen socialtheorist and publicintellectual, widely regardedas the mostinfluential theorist of democracy ofourtime. Throughout the1960sand 70s,hisworkboretheimprint ofbothWeberian andMarxist traditions. Fora time, he was viewed as continuing thelegacyoftheFrankfurt School; a legacysteepedin Marxist thought. Laterwork marked a moveawayfrom Marxand a 'linguistic turn' in his thinking.In The Theory of Communicative Action , publishedin 1981, he undertook a 'critique of functionalist reason'in linewithprevious work,butnow through a systematic theory of discoursewhichincorporated thenotionof universal pragmatics. In his major volume, from 1992,Between Factsand Norms , he developed the link between discourse and democracy as sustained andunderpinned bylaw. The keyformulation thathas infiltrated debates regarding thepublicsphereeversinceis thatof 'co-originality': ofrights anddemocracy, ofpublic andprivate autonomy. InHabermas's 'republican' understanding of the publicsphere,rights and democracy are equi-primordial and constitutive: together they sustain thepossibility ofdemocratic deliberation andwithitthepromise ofconsensus, truth and self-determination. Itis wellknownthatforHabermas theconditionsthatunderpin uses of language('universal pragmatics') coupled withtheopennessof discourse ('theidealspeechsituation') as aspiring to consensus,guaranteethe truthfulness and correctness ofstatements. In hisownwords: 'Underthepragmatic presuppositions ofan inclusiveand non-coercive rational discoursebetween freeand equalparticipants, everyone isrequired totakethe perspective of everyone elseand thustoproject herself into theunderstandings ofselfand worldofall others; fromthisinterlocking ofperspectives there emerges an ideallyextendedwe-perspective ' fromwhich all can test in common whether theywishto makea controversial normthebasisoftheir shared practice. ' 1 According toHabermas's famous formulation of the discourseprinciple, only those normsare validtowhichallpossibly affected personscould agreeas participants in rational discourse.'[T]he modernlegalordercan drawitslegitimacy only fromthe idea of self-determination: citizens shouldalwaysbe able to understand themselves also as authors ofthelaw towhichtheyaresubjectas addressees.'2 Thismovecompletes thepicture, thelinking of discourse, law and democracy. The principle of democracy derivesfrom the'interpénétration' of thediscourseprinciple and thelegalform. Law anddemocracy figure as co-original guarantors of truth andself-determination. Discourse andlegality becomemutually enabling inthis internal linking ,and findexpressionin a 'radical'(as it is often portrayed) theory ofdemocracy. European Social Dialogue Giventheseconnections many havesought tofind a basisinHabermas's thought forexplaining and critiquing the social dialogueof the European Union(EU). The term 'socialdialogue'is used in theEU torefer tonegotiations between therepresentatives ofmanagement andlabour- the'social partners' - in a variety of fora:supranational, national, subnational, cross-sectoral, sectoral. Used initsnarrower sense,socialdialogue refers specificallyto bi-partite negotiations undertaken at the cross-sectoral levelwhichhave as their aim the conclusionof bindingagreements. Such agreements maybe giventheforce oflawbymeansof implementation in a EuropeanDirective; alternatively , theymaybe implemented 'autonomously' bythesocialpartners andtheir member organisations within themember states. Since1992,thesocialdialoguehasbeengiven a prominent placeinEUpronouncements regarding socialpolicyand thepostulated 'European social model'.It has been described as fundamental to theEuropean socialmodel;a meansbothofinitiatingand directing socialreform, and ofsecuring good governance.3 These are grandstatements indeed,notobviously borneoutbytheconcrete achievements ofthedialoguetodate.What arewe tounderstand from them? Is thesocialdialoguea typeof collective bargaining, a formof corporatism , a method oflegislation? Whenin1998,the ECJ asserted itsjurisdiction todecidethequestion of the'representativity' of theparties to a social dialogueagreement, Brian Bercusson criticised the Court for failing topayduerespect tothefact that theconceptual roots ofthesocialdialogue wereto be found principallyin industrialrelations.4 Analysing thesocialdialogueas a typeofcollectivebargaining , theCourt shouldhaverecognised thatitwas fortheparties themselves to decide suchmatters. To understand thesocialdialogueas a typeofcollective bargaining, as Bercusson suggests , however, is necessarily tofind serious fault withit.5 Thisis a 'collective bargaining' wherein thebargaining parties lackautonomy to decidea number of keyquestions- theidentity of their bargaining partners, thesubject matter ofnegotiations ; a 'collective bargaining'wherein the European Commission hasclaimed for itself a right to 'assess'thequality ofcollective agreements; a 'collective bargaining' withno right totakeindustrial action.6 In lightof theseseriousshortcomings of the socialdialogueas collective bargaining, thearguINTERNATIONAL union rights Page 20Volume 18Issue 4201 2 ment hasbeenmadethat thepractice might betterbe understood as a typeofdeliberation, rather than bargaining backedbythethreat ofindustrial action; as a meansoffinding solutions beneficial to all,rather thana hammering out of compromisesbetween twosetsofpre-existing, opposing interests.7 TheCommission itself has adoptedthis lineofanalysis, defining thesocialdialogueas: ... a process, in whichactorsinform each other oftheir intentions and capacities, elaborate information provided tothem, and clarify and explain their assumptions and expectations . Thisis notthesameas bargaining, but provides a setting formoreefficient bargaining byhelping toseparate the digestion of facts...