Contenu du sommaire : Chronique bibliographique

Far from experiencing the sterile fate as described by Raymond Aron, the Durkheim's theory of corporatism gives us an operating model to understand the present evolution of labour law.

The general policy of British labour law during this century has been to abstain from legal intervention in order to permit collective bargaining to flourish. This policy rests upon an ideology called industrial pluralism which advocates collective bargaining as the means of introducing democracy, the Rule of Law, and fairness into the workplace. The author argues that collective bargaining fails to achieve the ideals of industrial pluralism because it overlooks bureaucratie domination in the workplace. This can only be overcome by detailed legal regulation designed to secure workers' rights.

The scrutiny of the close connection between expert appraisement and judicial review should be especially fruitful if it takes place on the borderline usually drawn between such different legal fields as labour law and economic law. The purpose of the paper is to consider how and why this connection takes different forms about the same topic : the "interest of the enterprise", following the field in wich it arises. The legal system as such doesn't answer it. It is therefore suggested that one relevant element has to be found in the neo-corporatist government of collective interests which contributes to externalize the expert appraisement out of the judicial review. However, one has to find new ways to reinforce the concept of control in the field of labour law, in order to face this paradox that in many cases workers get more enforceable rights in the economic law field than in that of the labour law.

Consultation of staff representatives in the decision making process of managing campantes implies, to be truly effective, that these representatives are thoroughly informed and dispose of appropriate means to verify such information. In France, two methods have been used extensively to achieve this goal with regard to working conditions. In the first case, an occupational medical doctor is employed directly by a company (or an association of several companies) and is officially in charge of such matters within the internal organisation of that (those) enterprise (s). His opinion concerning the physical condition of individual employees and their capacity to carry out their job function as well as his propositions concerning improvements in working conditions, is mandatory and must be taken into consideration by management. He is guaranteed by statute complete independance and freedorn in the exercise of his medical professional activities. He is the medical consultant for management, the employees and the staff representatives all at the same time. Yet, case-law has often deprived the medical doctor of his right to stop a management decision which in his opinion is detrimental to the health conditions of the employees. When introducing new technologies, the management Labour Council may legally seek the advice of an outside expert either in agreement with the chief executive officer of the company. or by requesting and being granted judicial permission. In this last case, the judge is entirely responsable for naming the expert, specifying his working conditions and limits, and granting him investigative powers. Such are the two different possible methods for informing the management Labour Council and limiting the extent of management 's monopoly on legitimate expertise. The position of the judge in this process underlines the basic weaknesses of the collective bargaining process on the company level within France.

The increase of the number of cases dealt with in court is often presented as an increase in the judiciary character of our social relations. During the last ten years, the number of cases dealt with by the courts has increased by 50%. Without denying the importance of this increase, we can ask ourselves about the real nature of this phenomenon and try to observe if this quantitative increase dots not hide another reality. Historically, courts have never had the monopoly of the settlementt of disputes. There has always existed an "informal justice" like the disciplinary committee in companies, associations, the different kinds of private arbitrations, particularly in commercial matters. What might appear as new is the fact that the state itself has been developing for a few years "extra judicial procedures" like "conciliators", "Boite postale 5000"... With these new procedures of settlement, the state tries to obtain more "flexibility" in the judicial System.