This Chapter outlines the legal contradictions in the European ‘project’ with regard to work. In particular, it points to grave tensions between, on the one hand, the ‘existential’ social aspirations of the European Union, which place work at their centre, and, on the other hand, the ‘metaphysical’ realities of a legal framework which has singularly failed to constitute the very working relationships upon which the much vaunted ‘Social Europe’ is predicated. By constructing this ontological account of the role of law in constituting all social and economic identity and exchange, this Chapter argues that the legal and constitutional theory which formed the basis of the ‘economic’ phase of European integration has not been followed during the ‘social’ phase of integration which has followed. In this manner, the ‘social’ within Europe has been relegated to an inferior status, precisely due to the failure to construct the working relationships which this social vision is based upon. While the idea that the ‘social’ gives way to the ‘economic’ is one which emerges from much writing on the European Union and international economic integration more generally, this Chapter breaks with that vast, cacophonous body of literature to argue that it is precisely the efforts to rectify this ‘social deficit’ which cement this failure. The emergent ‘social’ acquis of European Union law at constitutional level has often come to adopt the ‘existential’ trappings of constitutional language, by expressing the identity of its polity through its values and social aims. However, in so doing, it has failed to capture the ontological essence of constitutionalism, whereby social or economic actors are literally constituted by the law. It is this ontological role of the law which allows us to talk of the European Union as a genuinely constitutional project, at least in the economic sphere. As the social values of the Union largely rest on an economic framework premised on stable working relationships, the failure of the constitutional settlement to ensure such relationships has the effect of negating the ontological status of the work in the European social model.
In this manner, this Chapter questions the coherence of the European employment and social policies through their failure to deliberately constitute stable employment relationships, while nonetheless being premised upon their existence. This failure is not simply a legal one however, but also one of ideology: much labour law thinking, including that which is critical of the relegation of social policy within the European project, shares this naïve vision of economic relationships and work. On the one hand, labour law emerged within an economico-historical, materialist heritage, rejecting the importance of law in the arranging of industrial affairs. On the other hand, more recent labour law scholarship and policy development have often fallen into a form of jurisprudential naivety, in which it has been thought sufficient to engage in a form of juridical ‘virtue signalling’ through the use of the rhetoric of social values and human rights. Such scholarship is based on, respectively, legitimate and laudable concerns regarding social power and the pervasiveness of constitutional principles. However, this Chapter argues that without the necessary legal constitution of the economic relationships, in particular working relationships, upon which these values and rights are predicated, such goals will remain illusory, and social power will prove difficult to shape. While the passing of ambitious legislation such as the European Pillar of Social Rights, declared in late 2017, in many ways typifies and indeed magnifies these errors yet again, it might offer an opportunity for judicial and policy-focused reflection that forces greater focus on constituting working relationships within the shared European economic and social space.