VIII Международная научно-практическая конференция «Перспективные вопросы мировой науки – 2013» (София, Болгария)

Право/4. Трудовое право и право социального обеспечения

PhD Tomashevski K.L.

International University “MITSO”, Belarus

The Philosophy of Labour Law: concept and its parts

The philosophical research of legal problems has been enriching throughout the centuries of Belarusian history. Perfectly elaborated philosophical concepts of law of such Belarusian enlighteners and scholars as Francysk Skaryna, Michałon Litvin, Andrej Vołan, Adam Alizaroŭski etc. may prove it.

In the course of time the philosophy of law evolved into a separate school in philosophical researches and in the 19^th century it was studied as a branch of science at juridical, philosophical and other departments of classical faculties at various universities. Major contributors to the development of this school were such famous representatives of philosophical and legal realms as G. Gegel, B.M. Chicherin, P.I. Novgorodtsev and some others.

It is worth mentioning, that the final formation of the philosophy of law practically concurs with the appearance of a separate branch of law, legal science and educational discipline as labour law. That is probably the reason for the fact that, according to our information, the phenomenon of the philosophy of labour law, bordering on the philosophy of law and the science of labour law, has not been the object of studies so far.

In view of this a question of whether it is expedient and important do this research emerges. As we see it, the answer proves to be affirmative. It is common knowledge, that interdisciplinary researches bordering on several sciences, or a science and philosophy, possibly a science and religion, greatly enrich the related fields, which gives an opportunity of introducing new ideas and concepts. These ideas and concepts provide the basis for new theories, courses and even scientific schools. The appearance of sociological (S.A. Muromtsev, M.M. Kovalevski, and others) and psychological (L.I. Petrozhitskiy) theories (schools) of law may serve as a vivid example to this. The theories emerged at the junction of legal science and sociology and psychology correspondingly.

Labour law scholars have recently suggested the idea of the existence of positive and sociological schools of labour law (V.M. Lebedev, S.P. Mavrin), natural and positive labour law (S.P. Mavrin, E.B. Hohlov). This division may be viewed as an attempt to work up a doctrine of labour law through teaching and categoric instrument of the philosophy of law.

This article is aimed at outlining the concept of the philosophy of labour law, picking out its methodological basis, focusing on the problem of the essence and the existence of labour law.

The Concept and Methodology of the Philosophy of Labour Law.

One should emphasize some distinguishing features of a philosophical or legal phenomenon to determine its concept. It is as difficult to define the philosophy of labour law as to determine such phenomena as “philosophy” or “law”.

The philosophy of labour law is characterized by the following qualities:

-it is a branch of philosophical and legal researches as it borders on philosophy and labour law;

-it is guided by the methodological and categoric instrument of both philosophy and jurisprudence;

-it helps to look at the legal-labour phenomena from the philosophical point of view, to understand the material, gnoseological and axiological sides of a phenomenon;

-it gives an opportunity to realize and define a phenomenon of labour and legal reality (labour legislation, its usage, etc.) from the point of view of such universal philosophical categories as “vice” and “virtue”, “common” and “particular”, “quantity” and “quality”, etc.

The peculiarity of the philosophy of labour law lies in its being targeted at securing natural labour rights of a labourer in the first place. One of the ambitions of the labour law is to work out such a procedure of regulating labour and labour-related relations, when the latter will be imbued with moral-legal ideas of universal freedom, formal equality, justice and humanism. Thus, the aim of the philosophy of labour law is not restricted to assessing the current labour legislation, but it is also targeted at finding solutions to improve it, by pursuing the abovementioned legal ideals.

In general the philosophy of labour law may be defined as a new interdisciplinary branch of philosophical and legal researches of the phenomena of labour and legal reality.

The contents of this new branch of the humanities (and a branch of science in prospects) may consist of such parts as labour law anthology (the teaching of its essence and existence), labour law axiology (together with the teaching of labour law values), labour law gnoseology (the teaching of cognition of labour law, including explanations, concrete definitions of its norms, corrections of legal deficiencies) and some other.

As it is mentioned in the preface, the philosophy of law was worked out by a great number of thinkers of the past and present, including philosophers and lawyers, whose works are, undoubtedly, the basis for the forming of the philosophy of labour law. Among contemporary Russian legal philosophers we can’t but mention such famous theorists as S.S. Alekseev and V.S. Nersesiants. Quite a number of textbooks which contain a course of legal philosophy, articles, which describe various questions of the branch, have emerged recently.

We can’t but admit that the ideas of the existence of natural labour law and its difference from the positive labour law have been expressed in the science of russian labour law (S.P. Mavrin, E.B. Khokhlov). Complex researches of labour law principles, including the freedom of labour and several other questions, which concern the philosophy of labour law, have been developed.

As early as 20 years ago prof. E.B. Khokhlov wrote that natural law concept can be easily applied to the particular moments of labour law. The researcher considers the mechanism of labour legal regulation in a pluralist economy to be grounded on the most important natural right of an individual – that of freedom of directing his activities, including the inclinations for work. In his turn, the representative of the Saint-Petersburg labour law school S.P. Mavrin mentions that freedom, equality and social justice are the three major principles of law, which have a universal nature and which are the basis for natural labour law and should serve as the basis for positive labour law.

This perception of labour law is based on the juridical and libertarian concept of law interpretation, developed by V.S. Nersesiants in generally supported by us. The difference of natural labour law interpretation by S.P. Mavrin from the concept of law as V.S. Nersesiants sees it is in the replacement of the notion “justice” by the category “social justice”, and also in the fact that V.S. Nersesiants avoids using the term “natural law”, differentiating law and legislation.

The above mentioned approaches are, certainly, not the only ones in present-day interpretations of law. The integration approach of R.Z. Livshits, who was the leading scientist in the branch of labour law and a theorist of law at the same time, is of current importance. R.Z. Livshits offered the definition of law as ratified justice which consists of realization of social compromise. This definition, as the author sees it, covers value, normative and sociological interpretation of law altogether. It may be considered as a generalized one as it gives an insight into law as the unity of ideas, norms and social relations. V.M. Lebedev, professor of the Tomsk State University, provides the ground for the sociological approach to studying legal-labour phenomena. In his opinion, “not only those norms should be ascribed to the contents of labour law, which are consolidated into institutes, sub-institutes, parts, labour relations, but also into labour and labour-related relations.”

At the same time, no works investigating the phenomenon of labour law have been published until recently. The idea of the appearance of labour law philosophy was firstly mentioned by the author of this article at the International conference at Moscow State Academy of Law in January 2005 and then researched this issue in a the monography “Sketches of labour law” [1]. Problems of anthology as a part of philosophy of labour law was investigated by Ukrain scientist T.A. Zanfirova [2].

The development of the philosophy of labour law should be based on the methods of other sciences, such as system and functional, specifically historical, analytic and critical, methods of modelling, comparison and other. Philosophical, social and special legal methods (formally legal method, legal modelling, etc.), logical techniques (e.g. induction and deduction) are used.

The philosophical and methodological basis for our interpretation of labour law philosophy is dialectical idealism or, in other words, idealistic dialectics.

The Anthology of Labour Law

By anthology [gr. on (ontos) – the existing + logos – word, definition, concept] in its lexical meaning the philosophical doctrine about being, a part of philosophy which studies fundamental principles of being, the most general essences and categories of the existent are implied.

Legal anthology is also analysed in the literature on the philosophy of law. By some authors the doctrine about the existence of law is turned into the issue of the kind of reality the law should be ascribed to, while by others – into the analysis of a human being as a legal being (creature), existence of law and forms in which it exists. In our opinion, according to etymological and philosophical definition of anthology, the anthology of law should imply the doctrine about the existence and essence of law and various legal phenomena.

So, the anthology of labour law is a doctrine about the essence and the existence of labour law in each possible meaning; realization of labour and the spheres connected with it; interrelations of national and international labour law; functioning of the branch of labour law and its separate elements (parts, institutions, subinstitutions, norms); interrelations of labour law and legislation; forms (sources) of existence of labour law and a range of other questions.

It is difficult to define the essence of labour law, as the law itself may be viewed in a variety of ways. The essence of labour law in the objective sense (as a branch of law) is comprised of ratification of legal provisions which regulate labour and the relations connected with them. The essence of labour law in subjective sense is the corresponding sphere of freedom, the measure of possible behaviour of a subject in the sphere of labour, which he possesses by birth or according to labour legislation. Reasoning from the way of the existence of law the whole labour law may be divided into natural (non-positive or suprapositive) and positive labour law. The latter differs from the former in the way that it is laid down in the positive sources of law (legal documents, legal agreements, judicial precedents, legal practices, etc.)

Positive labour law is the one which is laid down in labour legislation or approved by the government (e.g. local legal documents, collective agreements), and complies with the four legal ideas of universal freedom, formal equality, justice and humanity. As seen from the definition cited above, the concept of positive law (including labour law) does not coincide with that of legislation. Firstly, the positive law may exist not only legislatively (as a legal document), but also as a legal agreement, legal practice, judicial precedent. Secondly, legislation is the source of positive law only to the extent of its correspondence to the demands of universal freedom, formal equality, justice and humanity. Otherwise, legislation is illegal and contains legal despotism rather then law.

Thus, in order to be legal, labour legislation and its single norms must be harmonised with the demands of the above mentioned labour law ideas. The legislation can be assessed as legal or illegal by constitutional courts primarily and legal doctrine (influential lawyers who specialize in the branch of labour law).

Natural labour law is juridical norms which are derived from the legal ideas of universal freedom, formal equality, justice and humanity regardless of the fact whether they are reflected in positive sources. These elevated legal ideas are specified in several universal legal and specific principles of law (e.g. the idea of universal freedom is reflected in the principles of freedom of labour, freedom of labour contract, prohibition of compulsory labour).

The signs of law differ in terms of the viewpoint we use to consider the law. For positive law, as seen from the abovementioned definition, essential are such qualities as: (a) its correspondence to the elevated ideas of universal freedom, formal equality, justice and humaneness, (b) correspondence to a norm, (c) formal determination and (d) obligation – due to governmental support. We consider non-positive law to be characterized by the two first qualities and sometimes by the third one (a vivid example is generally accepted principles of international law laid down in declarations and other documents formally not obligatory for use). As for subjective law, its core (and not quality) is real or relative freedom, an opportunity of a person (employer, employee, another subject) to determine his/her behaviour.

The interrelationship between the natural and positive law occurs to be of significant importance. It is obvious, that the latter should correspond to the former. More complicated is the issue of the outcomes of the situation when the ideas and norms of the natural law are reflected in the sources of positive law. Do the ideas and norms of natural law continue to exist? We deem that the answer is negative. If juridical norms are laid down in the sources of positive labour law on the basis of the legal idea of universal freedom, formal equality, justice and humanism (for example, art. 42 of the Constitution of the Republic of Belarus on the just remuneration for the economic outcome of one’s labour is illustrated in the idea of justice), these norms may simultaneously be viewed as natural and positive legal norms, for they correspond to the signs of both of them, which were discussed above.

In conclusion we would like to mention that the philosophy of labour law undoubtedly goes beyond the questions raised in the article. This new domain needs further juridical and philosophical research.

Литература:

1. Томашевский К.Л. Очерки трудового права. История, философия, проблемы систем и источников. – Минск: Изд. центр БГУ, 2009. – 335 с.

2. Занфирова Т.А. Аксіологічно-нормативні засади філософіȉ трудового права. – Запоріжжя, 2010. – 300 с.