ABSTRACT
This chapter considers the legal metaphysics of work in Europe. It identifies a crucial constitutional lacuna in the European project: the social goals of the European Union, which have gradually come to occupy a central place within its constitutional documents, largely depend on economic and social relations which the European legal order has failed to conserve or construct, namely stable employment relations. The author argues that the legal and constitutional ideas which led to the much-vaunted European ‘economic constitution’ have not been retained during the aspirational ‘social’ phase of integration which has followed. In this manner, the ‘social’ within Europe has been relegated to an inferior status, due to a naïve belief in the power of declaratory or rhetorical legal forms and piecemeal ‘regulatory’ legislative acts. The author argues that the ‘social’ acquis of European Union law at constitutional level has often come to adopt the ‘existential’ trappings of constitutional language, while failing to capture the ontological essence of constitutionalism, in which a new political, social or economic order is created. This inconsistency stems not only from legislative failure but also from a cognitive blind spot among labour lawyers who have largely inherited a materialist intellectual heritage and ideology, which assumes the pre-legal nature of economic relationships and power. While actors such as the Court of Justice of the European Union have begun to recognise the importance of these questions in limited circumstances, the European legal order is largely characterised by enumerated goals, policies and principles which place working relationships at their centre while doing nothing to put in place the legal framework necessary for such stable relationships to persist.
