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This chapter identifies the potentially disruptive nature of the digitalization of workplaces in terms of our understanding of the ‘self’ at work. Traditional divides around work and private life, mind and body, machine and human are increasingly being reshaped by the introduction of certain kinds of technology into the labour market. It then proceeds to outline how these changes might be conceptualized on the traditional labour law narrative and the issues which arise from the introduction of artificial intelligence (AI) into the workplace according to our inherited understanding of ‘personhood’; namely, the effect of AI on worker ‘rationality’ and ‘autonomy’. In this chapter, there is an investigation of the potential benefits and implications of changing our approach to ‘personhood’ in a theoretical sense. The final section explores how the alternative vision of personhood might be adopted, in practical terms, to increase the effectiveness of the regulation of AI in the workplace.
This chapter investigates how the COVID-19 pandemic has challenged our most basic assumptions about our ‘selves’ at work, and (hence) the relationship between labour law and social justice. On the one hand, the pandemic reemphasized worker corporeality and led to a greater incursion of health and safety concerns into the workplace. On the other hand, the COVID-19 pandemic served to accentuate the individualist and rationalist conception of the person at the heart of the law of the workplace. The chapter investigates the obstacles that this individualist/rationalist conceptualization of the person has caused in regulating the workplace both during and post-COVID. This approach has led to the erosion of collective and negotiated solutions, the equation of employee and employer struggles, and the inability of the law to protect those workers most in need. It is argued in the chapter that the analysis of labour law in the pandemic points to the need for a greater engagement with the moral project of embedding relationality at the heart of labour law, in order that labour law can better respond to labour market ‘shocks’.
This chapter concludes on the possibility of generating a positive theory of social justice for labour law by changing the way in which ‘personhood’ is conceived. In the chapter it is argued that there are three main positive effects for labour law of adopting a more relational approach to personhood. This approach brings together the work of Marxist, feminist, and classical labour law scholars; it is an inclusive critical agenda. Second, addressing personhood at the heart of labour law is a way of reconciling some of labour law’s greatest contradictions and theoretical dilemmas. Third, the relationship between labour law and personhood is not just a theoretical issue; it is crucial to engage with personhood in order to move forward with a labour law agenda for social justice. The hope is that changing the way in which we view personhood as a matter of labour law will lead to law and policies which are more effective in improving the lives of workers. In particular, embedding relationality will make us more able to respond to labour market change.
This chapter provides an overview of the relationship between social justice and labour law. It outlines the engagement of labour law with critical theory, and introduces Marxist and feminist approaches to labour law. It discusses the traditional social justice narrative of labour law (the coincidence of ‘labour is not a commodity’ and ‘inequality of bargaining power’) and the difficulties and contradictions that arise. It is argued in this chapter that fundamental to the difficulties and contradictions in the social justice narrative in labour law is the way in which personhood is conceptualized. This assertion is supported by an investigation of Sinzheimer’s critique of labour law and the person. The final section of this chapter seeks to suggest an alternative conceptualization of the person based around ‘relationality’. This conceptualization builds on Sinzheimer’s approach but also incorporates feminist and Marxist approaches to (legal) personhood.
This chapter starts with the context of the relationship between labour law and feminist theorizations generally, and an explanation of the failure of feminism and the feminist method to reach the mainstream of labour law theory. It is argued that this represents a missed opportunity for both labour law and social justice. The second section presents the feminist critique of the liberal legal subject and explains why this critique is so important for social justice. The third section suggests ways in which that critique can be positively developed into a social theory for labour law. It investigates the promise of vulnerability theory, and particularly the suggestion that the liberal legal subject should be replaced with the ‘vulnerable subject’ of law. It then moves to outline the potential of the ‘relational’ subject and the value of the promotion of relational autonomy for social justice for workers. The limitations of those approaches are then considered, and in particular, the need to incorporate some of the insights outlined in Chapter 2.
The aim of this chapter is to explore the different ways in which personhood can be conceptualized in law generally and how far those conceptualizations could and have infiltrated labour law. The chapter starts with an investigation of legal personhood and the law and the distinction between naturalist and legalistic approaches to legal subjectivity. Rationalist, religionist, and naturalist positions are explored in terms of how far they have been incorporated into labour law theory and the implications of their adoption for labour law. This includes an investigation of the intersection between different views of personhood, labour law, and human rights. The final section of the chapter attempts to move the debate forward by introducing Sinzheimer’s ‘socialist’ view of the relationship between labour law and personhood, which it is argued sets up the initiative for a more ‘relational’ approach to labour law and the person.
This book aims to revitalise the link between social justice and labour law through exploring the issue of personhood and the ‘subject’ of the law.
Rodgers argues that incorporating a more ‘relational’ notion of self into labour law not only provides a fresh normative perspective through which to evaluate existing labour laws, but will also make us more able to respond to labour market ‘shocks’ and labour market change into the future, including the introduction of AI.
It is only by embedding relationality into our law that can we really respect the humanity of workers and construct a legal framework through which social justice can be achieved at work.
This chapter takes forward the debate by considering the impact of narratives of personhood on the design and operation of collective rights. It is argued that our failure to incorporate collective experience into our understandings of the worker/person seriously limits our ability to promote (collective) justice for workers. Section 2 engages with the distinction between individualism on the one hand and collectivism on the other. It is argued in this section that these elements have tended to become severed from each other, and that this has been to the detriment of both collective and individual rights. Section 3 discusses traditional collectivist approaches and their relationship to the law. Section 4 deals with the position of collective rights on the individualist/collectivist divide. The chapter ends with a reflection on the value of attempting to erode the individualist/collectivist distinction identified in the chapter, by more completely engaging with collective or relational views of personhood.
This chapter outlines the underlying tensions in employment status which derive from our understandings and commitments to different ideas and versions of personhood. It then proceeds to investigate how these tensions are manifested in the conceptual difficulties and failures around employment status. The chapter then discusses how the courts have attempted to resolve some of these tensions and some of the reform suggestions in practical terms. The penultimate section outlines an alternative conceptual model for employment status which might address some of the issues raised in this chapter: the softening of the categories and distinctions around employment status through the idea of ‘personality in work’. In the final section the limitations of the ‘personality in work’ model are identified, and an argument made for a more radical solution to the problems of employment status through moving towards a relational subject of law which incorporates (rather than rejects) dependency.
This chapter exposes how an employer’s use of automated job candidate screening technologies (algorithms and artificial intelligence) creates risks of discrimination based on class and social background. This includes risks of ‘social origin’ discrimination in Australian and South African law. The chapter examines three recruitment tools: (1) contextual recruitment systems (CRS); (2) Hiretech such as Asynchronous Video Interviewing (AVI); and (3) gamification.
