travail et mondialisation:
Marie-Ange Moreau, Normes sociales, droit du
Confrontations et mutations (Paris: Dalloz, 2006). Pp. xi, 461.
Normes sociales, droit du travail et mondialisation by Marie-Ange Moreau offers
nuanced analysis of the confrontations and changes in social regulation under
globalization. It engages with the abundant literature on the subject in French and
English and crosses continental solitudes to investigate regulation at different
governance levels in Europe, North America, and selected countries in the South. The
breadth of analysis is breathtaking.
This short book note cannot capture that breadth. It simply teases out the
following three themes central to the work: (1) Soft Law and the Importance of Time,
(2) Transnational Regulation and Regional Constructs, and (3) The Persisting
Importance of the International.
I. Soft Law and the Importance of Time
The soft law versus hard law debate runs through Moreaus book, demonstrating
the permeability and pervasiveness of the distinction. The analysis shuns easy
dichotomization. Instead, Moreau insists that the time frame of social regulation must
reflect the speed with which decisions are made in the new economy (concordance de
temps), and that soft law offers a response. Yet, the time analysis has another
dimension. As the late Katia Boustany has argued, those who underestimate the
impact of soft law on normativity underestimate the legitimating effect of time; that
effect has an impact on legislative action, as well as on public expectations of
legislators.1
Two examples from Moreaus work illustrate this latter point: the ILOs 1998
Declaration on Fundamental Principles and Rights at Work2 (Declaration) and
codes of corporate conduct.
A. The ILO Declaration
Moreaus book is critical of the Declarations rather minimalist core, focusing as
it does on freedom of association and collective bargaining, nondiscrimination, and
the elimination of forced and child labour. Through comparative and international
analysis, Moreau constructs a larger framework of fundamental social rights.
1 See Katia Boustany & Normand Halde, Mondialisation et mutations normatives: quelques
rflexions en droit international in Franois Crpeau, ed., Mondialisation des changes et fonctions
de ltat (Bruxelles: Bruylant, 1997) 37.
2 International Labour Organization, ILO Declaration on Fundamental Principles and Rights at
Work, 18 June 1998, 37 I.L.M. 1233.
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Yet Moreau recognizes the Declarations normative potential and reminds us that
the Declaration is a soft-law instrument that gives legitimacy to the use of other,
sometimes more dubious forms of soft law. Notably, the Declaration is referenced in
regional declarations, as well as in social responsibility devices. The resulting soft
law may increasingly be positioned in front of, indeed in the place of, legislative
action by states.
Moreaus extensive interdisciplinary literature review captures the tension
between the apparent limitations of the Declaration and its soft law potential, while
emphasizing that soft law does not arise spontaneously or independently of the
regulatory state. Rather, it has been demonstrated that enterprises adopt soft-law
norms precisely when they anticipate that the state might regulate on a matter, and
that they do so largely to retain a competitive edge. This is not the terrain of
spontaneous self-interested ratcheting up, as Charles Sabel has argued.3 Rather,
Moreau insists that social responsibility must be rethought in terms of its relationship
with hard law.
B. Codes of Corporate Conduct
Though codes of corporate conduct do not have transnational legal status, that
hardly prevents their application. This is a result of the spatial concordance
(concordance de lieu), the idea that these codes have the potential to apply wherever
social regulation is needed in a globalized economy. For Moreau, it is incoherent to
have the state undertake to respect certain social law principles while corporate codes
of conduct essentially pick and choose in an exercise of political marketing. The ILO
should take up the mantle, not simply as a better social monitor, but to assert a
normative leadership role.
II. Transnational Regulation and Regional Constructs
Moreau reminds us that the transnational employer needs transnational standards.
The regional space is an important, but incomplete, answer to the transnational.
Evocatively, Moreau reminds us that the transnational employment relationship is
hardly new. She takes us back to the expatriatea rarefied relationship that
reproduced the most privileged conditions abroad. But even this privileged
relationship has not escaped the precarious forms of employment that Moreau
discusses with respect to other employment relationships. Even in the expatriate
context, a concordance daction has become pivotal, and requires what Moreau
concludes is central: solidarity between workers, as well as judicial decision making
3 See Charles Sabel, Dara ORourke & Archon Fung, Ratcheting Labor Standards: Regulation for
Continuous Improvement in the Global Workplace (Social Protection Discussion Paper No. 0011,
World Bank, 2000), online: World Bank
BOOK NOTES / RECENSIONS SIMPLES
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2007]
(including by deterritorialized judges such as those of international organizations
administrative tribunals) that reaffirms fundamental social rights.
The precariousness that is captured by international analyses like Moreaus runs
deeper, of course, and has more profound consequences than that suggested by the
example of the expatriate community. Moreaus discussion travels across continents
with specific examples that underscore how regional spaces may construct sites for
social norms and may become sites for distributive justice, ensuring adjustment costs
for the dislocation of trade (social regionalism). But we are far from that in most
regions other than the European Union.
Moreau treats the reader to an account of the EUs engagement with these issues
that is intelligible to someone who is not an EU specialist (very much appreciated)
and that offers an analytical discussion in which the EU is not presented as so much
more sophisticated than any other region such that nothing else matters. To the
contrary, Moreau is able to point to the comparative benefits of different regional
approaches, emphasizing for example that the North American Agreement on Labor
Cooperations cross-border approach facilitates submissions by a broad range of
social actors.
transnational lies beyond them.
But if the regional spaces, including the EU, are insufficient, it is because the
III. The Persisting Importance of the International
The social clause debate that raged in the mid-1990s has resurfaced as an
important part of contemporary commentators analyses, including Moreaus.4 Some,
like myself, have insisted that an inherent, interpreted social clause remains with us
because the WTOs Appellate Body (and frankly, international investment panels)
must balance liberalization (and investor protection) with state social regulation in
their decisions. This balancing establishes normative hierarchies.
If, as Moreau argues, fundamental social rights serve a crucial role in framing a
quasi-immutable core that resists the political and economic whims of decision
makers, then surely an institution like the WTO should be guided by them. Greater
confidence in the centrality of the ILO Declaration to the project of setting a
normative balance, or equilibrium line, seems to be translating into a greater
willingness to imagine the ILOs ability to promote a fair globalization. Moreau
recognizes that the adoption of hard-law constraints depends on international
persuasion, so she is skeptical about the potential for arriving at a negotiated social
clause. But she argues that the need for a negotiated social clause will become
4 See especially Bob Hepple, Labour Laws and Global Trade (Oxford: Hart, 2005); Francis
Maupain, Persuasion et contrainte aux fins de la mise en oeuvre des normes et objectifs de lOIT in
Jean-Claude Javillier & Bernard Gernigon, eds., Les normes internationales du travail: un patrimoine
pour lavenir; Mlanges en lhonneur de Nicolas Valticos (Geneva: ILO, 2004) 687.
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increasingly pressing as the disparities between countries that register significant
trade growth but that simultaneously neglect protection of fundamental social rights
become too egregious. China is the quintessential example.
So Moreaus point is both that soft law may precede hard law, and that time may
prove a stark reminder of the importance of coherent international hard law. Soft law
should not come at the expense of binding social norms. Rather, time, which reveals
the unfairness of globalization (une mondialisation dloyale), renders the need for
international leadership painfully obvious. The international remains necessary for the
coherent regulation of the transnational. And in this project of coherence, many
actorsincluding, as Moreau argues, judges willing to give direct effect to
international labour standardsare necessary.
This book has the great merit of reaching across many disciplinary and
geographic borders to provide markers for the future construction of global labour
regulation. I hope it will be translated into many languages and widely read.
Adelle Blackett
G. Huscroft & M. Taggart, eds., Inside and Outside Canadian Administrative
Law: Essays in Honour of David Mullan (Toronto: University of Toronto Press,
2006). Pp. xii, 495.
The Liber Amicorum (Mlanges, Festschrift, Essays in honour of … ) is rapidly
becoming a standard in Canadian legal literature.1 The genre knows many variations.
On occasion, the organization is thematicby research field or by research
method; on occasion it is the authorscolleagues, students, co-authorsthat are
regrouped; and on occasion it is heterogeneous. Sometimes, the choice of topic is left
to the authors; sometimes it is assigned; sometimes authors write about the
honourees work; sometimes they are meant to weave that research into the themes
that animated the career of the person being celebrated.
The publication format also knows a plethora of forms. Traditionally in North
American legal writing, the law review has been a favoured venuea year seldom
passes without a Symposium Issue lauding or commemorating a beloved professor. In
Europe, by contrast, the collection of Essaysthe Mlangeshas pride of place.
Infrequently, tribute is rendered through an intellectual biography. In extraordinary
circumstances, it may even take the form of a published Annual Lecture or
Colloquium named for the honouree. Significant repercussions typically attend the
choice of format: a law review Symposium has the advantage of an acquired
1 See N. Kasirer, Of combats livrs and combats livresques (2004) 19:1 C.J.L.S. 153 for an
engaging excursus on the motivations for, and consequences of the growth of, this form of celebratory
legal literature.
207
BOOK NOTES / RECENSIONS SIMPLES
2007]
distribution and readership, and recognition on periodical indexes; a Festschrift
seldom benefits from systematic indexing,2 although it is more likely than individual
paper-part compendia in law reviews to be purchased by individuals; and an
intellectual biography usually comprises a thorough subject-matter index and a
coherent narrative of a life in the law, features absent from the other three forms.
However this may be, the published tribute aims at something transcendent. The
reader is meant to capture a glimpse of the person whose career is held up for
celebration: not so much what has been accomplished, although lists of published
works typically figure, as in the present collection, in an appendix; not even so much
about how it has been accomplished and to what effect, although contributors
invariably signal the impact of the scholarship produced; but, rather, a reflection of
the human being whose accomplishments are deserving of recognition.
With this last objective in view, I should like, briefly, to depart from the standard
format of a book note. I will, to be sure, advert to conventional topics like authors,
contents, material presentation, and bibliographic apparatus. Nonetheless, I should
like to begin with a personal account of the David Mullan I first came to know thirty
years ago.
In the spring of 1977 I composed a short case comment on a Federal Court of
Appeal judicial review decision and submitted it to a well known law review. Shortly
afterwards, I received a rejection. A more senior colleague at the University of
Windsor, having himself previously read the piece, advised me to send the typescript
to David asking for a candid assessment. I did so, without even asking in advance
whether he would be willing to look at it. David generously agreed to comment on
the draft. A few days later, he wrote back offering to publish the piece (subject to a
few editorial revisions) in the Dalhousie Law Journal, of which he was, unbeknownst
to me, then the editor. The spontaneity of his response and the warm tone of his letter,
which I have treasured since then, perfectly reflect the David Mullan whom these
essays honour: gracious, thoughtful, generous with his time and ideas, collegial and
warm in his personal relationships, rigorous in his scholarship, and uncompromising
in his ethical commitments. One sees these very same qualities signalled in the
opening paragraphs of the essays by MacLauchlan & Bryden, Corder, and Evans; in
the asides and respectful observations sown throughout the other contributions; and
so lovingly recounted in the Introduction by the editors, Huscroft and Taggart, and in
the Foreword by David Stratas.
What, then, do these essays say about Mullan the scholar? Some, notably by
Justice Keith (N.Z.) and professors Corder (South Africa), Aman (U.S.), Creyke
(Australia), McLean (Scotland), Craig (U.K.), and Taggart (N.Z.), speak to recurring
themes in Mullans scholarship that have resonance internationally: deference,
2 But see Xavier Dupr de Boulois, Bibliographie des Mlangesdroit franais / Bibliography of
French Legal Festschriften (Paris: La mmoire du droit, 2001), a remarkable work that contains
references to more than 15,000 works.
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administrative structures, and the interaction of substance and procedural fairness.
Others, for example, by Canadian scholarsprofessors Lemieux, Sossin, Cartier, and
Huscroft and Justice Evansspeak to more vernacular concerns: respectively, the
codification of administrative law, independence of and appointments to tribunals,
legitimate expectations, concepts of jurisdiction, and the jurisdiction of tribunals to
decide constitutional issues. Still others, by Chief Justice McLachlin and professors
MacLauchlan & Bryden, Walters, and Dyzenhaus, probe more deeply into the
character of Mullans scholarship and intellectual commitments: his impact on courts
and legal education, and his underlying legal theory. All these essays rise to the
occasion. All at once speak to central themes in the judicial review scholarship of
David Mullan and do so in a voice that resonates with, and to a qualitative standard
that mirrors, Davids own work.
Taking responsibility for a Festschrift volume is no mean task.3 The editors have
done a remarkable job, choosing an international all-star cast of contributors to the
volume and ensuring that the contributions stand, in their own right, as substantial
doctrinal expositions and elaborations of the Mullan oeuvre. All address Mullans
own position, assess its impact, point to its further iterations, and carefully trace out
either comparative or institutional dimensions of the legal principle at issue.
In any collection such as this, meant to celebrate an outstanding teacher and
colleague, there are necessarily themes left asidefor example, Davids contracts,
remedies, and constitutional law scholarship; so too are there dimensions of his career
left unexploredfor example, Davids service to his university, to his faculty, and to
the professorial cohort through the Queens Faculty Association. These, no doubt,
will be the focus of the further tributes that Professor Mullan so richly deserves. For
the moment, we can rejoice in the generosity of David Mullans teaching colleague,
David Stratas, whose financial support assisted in ensuring the publication of this
collection, so well chosen and edited, so magnificently produced by the University of
Toronto Press, and so genuine in timbre.
Roderick A. Macdonald
3 A wonderful reflection on the travails of the endeavour is offered by Frdric Rolin, Les principes
gnraux gouvernant llaboration des volumes de Mlanges: contribution ltude de la littrature
mlangiale juridique in Christian-Albert Garbar, ed., Les mutations contemporaines du droit public:
Mlanges en lhonneur de Benot Jeanneau (Paris: Dalloz, 2002) 221.
