THE SOCIAL VALUE OF LABOR LAW: THE VARIETY OF APPROACHES

The goal of the study is to determine the social value of labor law and its characteristics. The following tasks have been set to achieve this goal: 1) to distinguish the social value of law from related legal categories, 2) to determine the factors influencing the formation of the social value of the branch and give definition to it, and 3) to highlight the components of the social value of labor law and determine their characteristics. The hypothesis was the assumption that the social value of labor law is most closely related to the social purpose of industry and actively influences the formation of branch of law principles.

Materials and methods

The article is based on publications of lawyers, sociologists, economists and philosophers devoted to the problem under study. The main research methods are: historical and legal methods, methods of analysis and synthesis, comparative legal and normative dogmatic methods.

Let us turn to related concepts, which are quite thoroughly considered in domestic and world science and mainly in the general legal aspect before considering the problems of the social value of labor law.

Copyright© 2021. The Authors. Published by Ural State Law University.

This is an open access article distributed under the CC BY-NC 4.0. license

So, traditionally, the social value of law was expressed through its tendency towards natural law, and the natural law was often focused on justice. This approach has been preserved in social philosophy to the present day with some nuances (Prodi, 2017; Rawls, 2010; Heffe, 2007). Both supporters of positivism (Hart, 2007) and natural-legal approaches (Finnis, 2019) have traditionally ruminated on the phenomenon of justice and morality as a social value. This interpretation has a right to exist, however, due to the vagueness of the doctrine of natural law, it is not very productive, and the set of social values turns out to be extremely relative and subjective.

Results

It is obvious that the social value of law is very closely and even genetically related to legal axioms and legal principles. It is no coincidence that even the very definition of social value in some cases is given through a set of fundamental ideas and principles. In our opinion, it is the evolving social values that influence not only the content of legal norms-regulators, but also form less plastic atypical normative legal prescriptions, which include axioms and principles. In this aspect, the approach of the German lawyer and neo-Kantian philosopher R. Stammler is interesting and fruitful; the author of the concept of ‘natural law with changing content’ preferred to write about the social ideal, which is consonant with social values. He emphasized that the ideal depends on the level of social development in a particular place and at a particular time, which will change over time. Accordingly, law must be adapted to this ideal. At the same time, his interpretation of the legal ideal was quite contradictory and open to interpretation. Arguing from the contrary, one can say with what R. Stammler did not identify the legal ideal. This is not a ‘national spirit’ or national characteristic (as suggested by representatives of the ‘historical school of law’). It was not associated only with the moral principles and customs of society, with class morality (in the spirit of Marxism), with a sense of justice for a judge or other law enforcement authority, as it was assumed in ‘legal realism’. R. Stammler did not reduce the legal ideal to utilitarianism or pragmatism, since they do not provide a clear criterion for the distribution of benefits between members of society. At the same time, the social and, through it, legal ideal was externally expressed precisely through positive law, corresponding to the principles of law, adequate to the social values of a particular historical period and not eternal and unchanging in the spirit of the classical natural-legal approach.

Indeed, natural law was understood only as a historically contingent ‘natural law with changing content’ for him, and the latter was understood as legal principles that contain theoretically true law under certain empirical conditions; these principles do not yet have a positive meaning, but refer to the sources of law as the creators of positive law with a demand to change or transform the current law (Stammler, 1907; Stammler, 1902). In this regard, we can talk about some pre-principles with a value content, on the basis of which the principles of law are formed, that organize all legal matters. However, the process of their formation is shown rather contradictorily. A. F. Cherdantsev in this regard quite reasonably noted that the most extensive legal principles generally do not have the character of more or less substantive requirements, but relate to the system of social values that law should be guided by. Thus, he considered justice to be precisely the value that is expressed in labor law through a whole set of principles: ‘to each according to his/her work’, ‘to each according to his/her merits’, etc. (Cherdantsev, 2012: 137–138).

A very fruitful approach was determined by the famous German sociologist and lawyer M. Weber regarding the definition and content of social values of law. Let us recall that he identifies four types of ‘social action’, which are determined by his motives (Weber, 1990: 628–630), namely, 1) goal-rational, 2) affective, 3) traditional. However, he considered the most widely spread is 4) value-rational action, which is determined by a conscious belief in the social value of a certain action, regardless of what it leads to, whether it is performed in the name of some self-sufficient value, and its achievement turns out to be more important than rationally calculated consequences. In this case, we can talk not only about morality (including honor, dignity, reputation), but also religious values, cultural landmarks, even beauty, etc. In fact, the behavior of people in the overwhelming majority of cases is value-rational, i.e. in fact, reasonable, but with a tendency towards what is truly valuable to them. In this case, goals and ideals precede any interests, including economic ones, although the latter can indirectly influence the formation of the previous ones. Value is the form by which people organize their experience and even master the world around them for M. Weber. Ultimately, this is what matters to us, what we are focused on in our life,

what we take into account. At the same time, the German scientist strictly differentiated the value and the ‘behavioral norm’, including the rule of law, as a prerequisite and consequence. In philosophy, the criterion of dimensionality is applied to social values, borrowed from the theory of thermodynamics about ordered and disordered states. This implies that law leads to an ordered state of society; however, it is the values that, according to N. Wiener’s famous expression, ‘create islands of order in the chaos of the Universe’, but the values themselves do not contain finite dimension, they are the fruit of non-anthropological and non-anthropomorphic consciousness (Mamardashvili, 1992: 122–125).

Taking into account modern approaches that have been developed in jurisprudence and sociology, the social value of law can be defined as an ideal phenomenon, a phenomenon of spiritual culture, formed as a result of a sufficiently long social interaction in a specific place and at a specific time (here – now). Its formation is influenced by a large number of factors, ranging from morality, religion, economics, politics, etc. Value is associated with national characteristics, mentality, historical experience, collective unconscious, etc. Its content is the ideals, goals and assumed results of the existence and functioning of law, and not in the context of ‘bad’ or ‘good’, but ‘accepted’ or ‘not accepted’ at different levels. Such ideals can be individual, group and social, but not reducible to the sum of individual and group ideals.

Unlike the norms of law, including norms-principles, social values, as a rule, do not have a normative consolidation, but can be expressed in fundamental international acts, constitutions, and, as a rule, in preambles and through norms-declarations.

Let us clarify that social values are not understood and do not even intersect with the economic category of ‘value’ as a value expression of a commodity realized in its price. It should be borne in mind that the existing system of values, of course, can affect the state of the economy, as well as the fact that the latter indirectly can affect social values (Lushnikov, 2019).

This approach allows us to single out four components of the social value of labor law, namely:

• 1.    Justice. Taking into account the mixed private-public nature of the mentioned branch of labor law, this value must be understood through such generic concepts as conformity, adequacy, proportionality, representativeness, relevance. We are talking about the compliance of labor costs with wages, the proportionality of the severity of the offense to the type of labor law responsibility, the adequacy of the incentives for the achievements of the employee, etc. Justice does not dictate the content of legal norms, but sets their framework, taking into account personal and public perception.

• 2.    Equality. We will not speculate on the difference between arithmetic and geometric, allocation and distributive and other types of equality associated with interpretations of justice. In the value option, everything will be simpler and clearer: equality in rights and opportunities for their implementation, combined with differentiation, as an integral part of ensuring true equality.

• 3.    Freedom. This is not just the ability of parties to act at their own discretion, but the implementation of freedom as a social value, i.e., rather ‘freedom for’ (positive freedom) than ‘freedom from’ (negative

  

  freedom). The experience of our country shows that there can be no labor law without a significant degree of freedom, including contractual, effective and employee-oriented labor law (Khachaturova & Lushnikova, 2016).

• 4.    Humanism. It presupposes not only a humane attitude towards the employee, but also the search for a compromise between all participants in labor relations, social partnership and class harmony.

Obviously, none of these values exist in a vacuum; they closely interact and intertwine with each other. These values can come into conflict, but in the sphere of their kind of ‘intersection’ all contradictions are removed. So, it is right to dismiss a pregnant woman for gross violation of labor discipline, but this is hindered by humanism. Unlimited freedom of an employment contract will lead to the complete domination of the employer, in connection with which justice and humanism presuppose the establishment of threshold values (minimum monthly wages, minimum rest time, maximum working hours, etc.) and the participation of trade unions in the establishment of working conditions.

Let us clarify that we are not talking about principles, but about values developed by society. In our opinion, these do not include democracy, legality, unity of rights and obligations, mutual responsibility of the state and citizens. They are subordinated to social values, although this does not mean that these principles are secondary or less significant. They simply represent the ‘technical’ side of the problem in the aspect we are considering, although it is extremely problematic to achieve justice, equality, freedom and humanism without their observance.

Currently, some of the values may conflict and even contradict traditional values, for example, justice and equality. We are talking, in particular, about such a problematic social value as ‘diversity’, especially ingrained in the United States. Similar values are ‘multiculturalism’, ‘gender diversity’ (recognition of the presence of 54 sexes), etc., which directly affect labor law.

Discussion

By way of discussion, let us look at one more aspect of the social value of labor law related to overcoming human alienation. K. Marx, relying on the works of G. Hegel, linked alienation with the material world and, above all, with labor. He believed that human labor, on the one hand, is a specific, creative activity that freely shapes and develops a person and socializes him. Free labor, in fact, is true freedom. On the other hand, the conditions of people’s social life, generated by private ownership of the means of production, cause people to be alienated from the results of their labor, deforming and disfiguring both the individual and humanity as a whole. Alienated labor is characterized by the following main features, noted by K. Marx in his early works (Marx, 1844), and then continued in his other works (Marx, 1867: 440):

• 1)    As the destructive force, spiritually and physically destroying a person. He pointed out that in his work a person exhausts his physical nature and destroys his spirit. In this case, it is the labor law that acts as a labor protection law in a broad sense.

• 2)    As the alienation of the worker from his own activity in the labor process, since his ‘Activity here appears as suffering, force as helplessness, conception as castration, the worker’s own physical and spiritual energy, his personal life (for what is life if it is not an activity?) – as an activity turned against him, independent of him, not belonging to him’. One of the qualifying features of hired labor is noticed here – its lack of independence. In this case, labor law should contribute to the socialization of the employee; involve him as an actor in the production process and in making economic decisions.

• 3)    As the alienation of the results of labor, in the process of which a person produces things that do not belong to him, because ‘... this implementation of labor, its transformation into reality acts as the exclusion of the worker from reality, objectification appears as the loss of the object and enslavement by the object, and mastering the object as alienation’. Thus, the ‘species life of a person’ is reduced to the role of a means for maintaining his ‘individual life’. Here is a direct way to social partnership.

• 4)    As alienation between workers due to competition for the right to work and between all people due to competition for the sale of goods and, as a result, alienation of a person from a person. It is no coincidence that unemployment is a generally recognized social evil. However, not just any work is needed, but socially useful and productive work and not its imitation in the form of ‘absurd work’ (Greber, 2020).

• 5)    As alienation of consciousness from life through the formation of a level of needs that do not correspond to either human nature or the level of social economic development. This form of alienation

  

only becomes actualized over time, when consumers are often forced to buy unnecessary goods for their money through aggressive advertising, starting with some new gadget, status item, etc.

• 6)    Another emerging threat of alienation was noted: the alienation of man from direct labor by replacing him with machines. Now such a threat is associated with robotization. K. Marx directly asserted that ‘the self-growth of capital with the help of machines’ is directly proportional to the number of workers ‘for whom they destroy the conditions of existence’. He expressed doubts about the possibility of compensating for this process with new jobs in the non-production sphere, and if they do appear, it will be low-paid segregated work in the service sector of the rich (lackeys, maids, servants). This is a precarious, often temporary employment instead of a permanent job with future prospects. In this regard, the unexpected increase in the number of conditional ‘food peddlers’, especially in 2020–2021, cannot but lead to certain reflections on the social value of labor and labor law.

Conclusions

The social value of law is an ideal phenomenon, a phenomenon of spiritual culture, formed as a result of a sufficiently long social interaction in a specific place and at a specific time (here – now). Its contents are the ideals, goals and assumed results of the existence and functioning of law. The article shows the characteristics of modern value approaches to labor law.