Between Facts and Norms - Contributions to a ... - Blogs Unpad

413Paradigms of Lawmon denominator too quickly. The right to free collective bargainingis certainly a good example of the internal constitutionalizationof a nongovernmental subsystem specialized for conflict resolution;the example also shows how the positive legal status ofassociation members can be furnished with quasi-political rights ofparticipation and assimilated to active citizenship. On the otherhand, this same right to collective bargaining provides examples ofhow individual self-determination can be undermined by collectivepowers. The willingness of the legislature to transfer lawmakingauthority to the bargaining parties and restrict itself to complementarytasks does not imply an unqualified gain in autonomy for theindividual employees. Spiros Simi tis has studied a range of legalphenomena apropos of this issue: rigid and gender-specific agelimits, protective norms for women employees, regulations governingpart-time work, the internal protection of computerized information,workplace safety regulations and, more generally, the legalelaboration of the so-called normal work relation. Simitis's investigationsshow that the instruments of the labor-management contractand the wage agreement-not unlike the labor law passed bythe political legislator-satisfy social claims at the cost of dictatingschemata and behavioral patterns from above. These normativecontrols can have the effect of normalizations that restrict freedom. Forexample, they unreasonably restrict the private life plans of beneficiariesinsofar as they promote traditional social roles instead ofinvolving the affected persons themselves in the interpretation,differentiation, or reorganization of these patterns:Statutes and wage agreements do not build bridges for the employee'sself-determination. On the contrary, they institutionalize heteronomyfo r the sake of better protecting the individual employee. As long as thestatute and wage agreement do not perceive the employee as an individualbut as part of a collectivity, they cannot fulfill their task ofestablishing standards that counteract the consequences of dependencein the workplace. The result: statutes and wage agreements introduce acolonization of employee behavior that, scarcely detectable at first, increasinglyspreads and solidifies.42Thus the internal constitutionalization of labor relations does notby itself yield greater autonomy: "thus, regardless of whether itconcerns legislation or collective bargaining, the individual agree-