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In a new series of studies, labor law expert Professor Guy Davidov discusses the purposes behind labor law and examines how the law should be structured and updated in light of these purposes.
Labor law is a developing and important component of all modern legal systems and as such forms an integral part of research and studies at the Hebrew University Faculty of Law. As in other fields, Faculty researchers are taking part in global activities and fundamental rethinking of labor law. Professor Guy Davidov, who teaches labor law at the Faculty, offers a fresh approach to the field in his new study and highlights the changes that have occurred recently.
“The study focuses on the purposes behind legislative and case law regulation,” Davidov explains. “I discuss the various justifications and rationales behind labor law in depth and examine the extent to which the regulation is faithful to the purposes even when the reality in the labor market changes.”
Why did you choose to focus on labor law?
“My interest in labor law dates back to before I even began my undergraduate studies. My father had a firm that was active in the field, so I began to become familiar with labor law and take an interest in it from an early stage. I later worked in the firm as a law student, and I interned at the National Labor Court.”
How did you come to choose an academic career?
“I began my academic path in Israel. Later I traveled to Canada where I completed a master’s degree and doctorate at the University of Toronto. Canada is a very interesting place in terms of labor law. It is more highly developed than the neighboring United States, where labor law is overshadowed by American capitalism. My doctorate thesis discussed a central question that has preoccupied the labor courts and academic literature: who is considered an employee and who is considered an employer? This has significant practical implications, because only those who are considered employees and employers enjoy the rights of labor law and bear its obligations.”
What new angle do you offer?
“I am interested in the means and legal techniques that can realize the purposes of labor law. In the context of defining the term ‘employee’ or ‘employer,’ there is a need for a purposive interpretation that will effectively determine the scope of application of labor law. This demands profound consideration of the question as to why we need labor law. There is also a need for fresh thinking about the best means, that is to say the most appropriate legal tools. For example, what are the best tests for determining who is an “employee?” In my doctorate thesis I proposed new tests for this purpose. Another question, for example, is whether there should be an intermediate category between “employee” and “independent contractor” that would enjoy only some of the protections established in labor law. I argue that this would be useful.
The welfare state and labor law
After completing his doctorate, Professor Davidov returned to Israel and began to teach labor law at the University of Haifa. He later moved to the Faculty of Law at the Hebrew University while continuing to pursue his research interests. As his own academic career progressed, so did the field of labor law in general. “The main justification for labor law has changed from the traditional approach. Today, many scholars emphasize the advantages of labor law for society at large, and even for employers, rather than focusing solely on the workers themselves.”
What is your opinion about that?
“I think that this line of discourse offers certain advantages. It helps to reduce resistance to labor law among employers and economists. However it also entails a difficulty and some risks, as I argue in a recent article that was published in the University of Toronto Law Journal.”
What is the danger?
“In my article, I use concepts drawn from the welfare state literature to explain the difficulty. Discussion of the welfare state and the various benefits it provides is based on a distinction between universal and selective programs. An example of a universal program is the old age pension, which is awarded to everyone – even to millionaires. A selective benefit is given only to those who need it. Our first instinct is to assume that there is no reason to provide a universal benefit. In fact, however, selective benefits raise considerable costs and problems. They require tests and mechanisms for determining eligibility, which cost money. Selective benefits also create stigmas and can very easily be abolished or cut when there is an economic crisis, since most people are not affected.”
How do you apply these concepts in your research?
“In the recent article I mentioned I focus on the general purposes of labor law, the “traditional” ones as well as new ideas, such as the claim that labour laws advance efficiency. I then examine the various purposes through the prism of the distinction between universalism and selectivity. As I see it, the old purposes are essentially selective, in that they are perceived as beneficial for workers only. The new purposes are more universal. It is argued that they are good for everyone, not only for the private sector. However, there are advantages and disadvantages. On the one hand, universal justifications attract less opposition. On the other, and this is where the difficulty and danger come in, they cannot explain and justify all labor laws. In particular, they ignore distributive aspects such as the goal of labor law to transfer power, resources, and risks between the parties to the employment relationship.”
Between universalism and selectivity
Professor Davidov continued his use of the terms drawn from the field of welfare in an additional study.
“I have written another article that is due to appear in the Oxford Journal of Legal Studies that applies the distinction between selectivity and universalism more directly to the field of labor law. This time I reexamine the question to whom labor law applies. As I show, there is actually a spectrum of possibilities from the most universal law that applies to everyone to the most selective one that is restricted to a very specific sector in a very specific context. I argue that we need to make some corrections in order to improve the balance across this spectrum.”
How is that different from the current situation?
“At present, labor law is usually applied in an ‘all or nothing’ format. However, it might be better to move along this spectrum, and to say that law A will apply to you but law B will not. It is true that we pay a price for this kind of nuanced approach in terms of impaired certainty, but at the same time we gain a system that is more flexible and better suited to its purposes. Indeed, any system maintains some kind of balance between universalism and selectivity – there is no system that is totally biased to one side or the other. However, this balance is not always sufficiently conscious or explicit. Using these terms and considering the advantages and disadvantages enables us to make some corrections.”
What’s next?
“At the moment I am working on a book that will include the articles I have mentioned together with earlier material of mine and some additional chapters that are still in the writing process. The book will be published in English and offers a purposive analysis of labor law. I examine all the purposes of labor law, both general and specific (relating to a sample of several key laws). I will try to show how the purposive analysis should be performed. This is an inherently interdisciplinary analysis, since the purposes of a given field are not internal to that system but based, among other considerations, on insight from other fields such as economics and sociology. I will then attempt to apply the purposes to concrete issues, such as the definition of the employer and employee, and to examine how legal tools such as good faith or the employer’s prerogative can best realize these purposes. The book aims to summarize my research over the past 15 years or so, since I began my doctorate studies, and includes all the insights I have gathered over the years. It will offer me a chance to organize my ideas in a new form and I hope it will contribute to discourse on this subject.”
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