Sleeping Beauty: Remarks by Brian Langille at SOCIAL JUSTICE AND THE FUTURE OF THE ILO
At the "Social Justice and the Future of the ILO" event in Geneva on July 13th, 2023, Professor Brian Langille of the University of Toronto's Faculty of Law delivered a thought-provoking closing address paying tribute to the work and ideas of Francis Maupain. In his narrative, he analyses Maupain’s proposals on challenges and opportunities that lie ahead for the ILO, emphasizing the importance of institutional reforms and the need to strike a balance between global interdependence and fairness. The speech captures the spirit of the event, and serves as a timely reminder of the ILO's crucial role in shaping a world anchored in equity and shared responsibility.
“[The ILO] dealing as it does with the homely problems of the welfare of the common man, has a universal constituency and a lasting cause to serve … Its name belies its nature; for it represents all interests, not merely those of labour. It is a world parliament limited in scope to the problems that affect labour but it acts in the name and the interests of all. It might more accurately have been termed the International Industrial Conference or, better still, the International Organization for Social Justice.
There was a hint of this broader conception of the purpose and scope of the [ILO] in the preamble to its constitution, in the statement that universal peace “can be achieved only if it is based upon social justice”. It must be confessed however that when we wrote those words into the text, we were not thinking of their far reach, but of a formula which would enable us to tie our organization into the structure of that new world order which the League of Nations symbolized. As I look back at it now, I am led to the opinion that we stated the most fundamental of all principles in political as well as social polity.” Shotwell, at the Paris Peace Conference (MacMillan, 1937) p54-55.
One of the greatest pleasures for anyone involved in international labour law is to meet and interact with Francis Maupain. An even greater pleasure for me is to be able to say that he has been a friend (to both me, and my wife Cynthia) for over 30 years. He is thoroughly admirable, and widely admired, both personally and professionally, across the universe of our discipline. In Canada, and perhaps some other places, a thoroughly admirable and decent man is sometimes called a “prince”. This is a rather old fashioned but lovely compliment conveying nothing about aristocratic background, but saying something deeply felt about the about the steady and generous moral character of a true friend. For Cynthia and I Francis has long been a prince.
It was a very high honour, for both Anne and me, when Francis agreed to our proposal of a book in his honour. As he has already re-iterated today, he did this on one large condition – that the book not be a backward looking Festschrift, examining his life and work, but rather a forward looking venture, aimed at critically exploring the possible futures of the vital dimensions of global social justice – the cause to which he has dedicated his life.
And today he has played his most recent hand in his lifelong pursuit of social justice – using the book as a springboard to further and even deeper reflection upon the role, in this noble pursuit, of the institution - the ILO - to which he owes a great deal (as he has explained) – but which, in my view, owes him much, much more in return.
This is so typical of Francis. He may be subtle of legal mind, and patient in diplomatic technique – but he is tenacious, indeed relentless, in his pursuit of institutional reform in the name of fundamental values.
He simply will not stop.
As an academic, but I think in life in general, the highest compliment one can pay to a colleague is to take them and their ideas seriously. This is what I hope briefly to do today.
As I read the reflections Francis has offered for our consideration today, I see the following line of thinking deployed:
The basic structure of the narrative is that of a continuing quest “to be of some service” to the ILO by now – at this stage - “stimulating some positive reflection” on its future.
But his stimulation is offered in a very uncertain and indeed dire set of circumstances – a context - in which the essential elements of the (multilateral) system (of which the ILO is a part) is now in disarray and called into question.
However, the ILO is, nonetheless – and even as a result of this dire context – in an exceptional position to mobilize to correct and secure the coherence and sustainability of the multilateral system – of ensuring the “sustainability of the development process”.
This is because the ILO has a comparative advantage. Several, actually.
But, this promise, or at least hope, is at risk due to the erosion of the will and capacity of the tripartite constituents to seize the historical moment which has now been thrust upon them.
That is the basic story. But as usual with Maupain, it is underwritten by a wide-ranging and careful analysis of the past and present of the state of the world, and a deep knowledge of the shape of current theorizing of all sorts – including about international institutions, economics, development theory, and more.
At this level, the most important intellectual “moves” deployed in support of the basic narrative are:
Specifying the “root cause” of the malaise that confounds the system and threatens to destroy it. The starting point, but not the end point, is the gap between promise (as expressed in the 2030 Agenda) and performance. The basic gap lies in the existence and growth of inequalities which “defy common sense to say nothing of our sense of justice”. This is what is undermining belief in the system.
But this is not the “crux” of the problem. Rather the real problem is that the system has not succeeded in “tackling head on” “the realities of global interdependence”. This interdependence is pervasive and on a grand scale – embracing the economy, technology, finance, health, as well as the environment and our climate.
What is required is a shift from a focus on our current outcomes – the inequalities which are undermining faith in the system – to an institutional process that can “make the distribution of the benefits and constraints of a global interdependence that is increasingly burdensome acceptable to all concerned”. The word “acceptable” is key. It is all about bringing about an acceptable and accepted fairness in the sharing of the benefits and burdens of global interdependence – this is what social justice at the global level is all about.
And it is at this point that the argument makes its vital turn – Maupain’s primary focus here is on process and institutions – not substantive outcomes. Making outcomes “acceptable to all concerned” is a function of how those outcomes are determined – not merely what they turn out to be. This is, in large part, an account of institutional, that is to say, procedural justice.
This is where the ILO’s institutional advantage resides.
First, it is a “universal tripartite legislator” (It is not relegated to the “subcontractor role” assigned to it by the 2030 Agenda). NOTE - is a universal legislator, not should become one.
Second - it has in the Declaration of Philadelphia the constitutional mandate required to get at the crux of problem identified. Again NOTE - has, as a matter of law, not should have as a matter of mere political hope or desire.
Third, the ILO has the internal institutional tools and processes to enable members move to an “integrated social and environmental” policy which will make the distribution of the benefits and burdens of interdependence “acceptable to all”. One goal is a new instrument. Francis Maupain is no stranger to creating innovative instruments. (via what he here calls institutional “tinkering”.) See the 1998 and 2008 Declarations! Or, to finding ways to do things within the current constitutional set up – ie, without constitutional amendment. (He is also, as I see it, the world’s largest fan of s. 19.5 (e).) The ILO also has The Conference. This remarkable institutional set up can operate as an ongoing universal forum for the required non compartmentalized pursuit of a coherent and acceptable set of policies.
Now here are some important observations. Along the path just outlined some remarkable ideas and arguments are revealed and put into play – almost silently. These include: We need to take our eyes off surface inequalities and disenchantments with the current state of play - and go deeper. And as a result, we aim higher. We need to shift from a plea for solidarity in facing global issues to putting in place - or, more correctly, seeing that we already have in place - the mechanism we need. This mechanism is based not on solidarity but reciprocity. No more feeling sorry and pleading for help – rather getting on with establishing the conditions – ie a process - which can deliver what is required – an acceptable distribution of benefits and burdens of interdependence. Not acceptable in the philosophical abstract – but acceptable to the nations of the world. All based on rational self interest in a world of interdependence.
One option is to use ILO standard setting tools to encourage all member to adopt integrated social and environmental policies. And here again is the key move – that it is the process itself which “may” be the main value added. (p.7) And the mission here is to empower citizens to have a fair share of the benefits and burdens. As I read Maupain, this is the linchpin – that the way out of our current crisis in the system is to restore faith in its fairness at the level of the citizen. (p.8) The key ingredients are empowerment, social protection, and freedom of expression and association to be heard on these matters. (p8)
The key procedural move comes at pp 8-9. This is the move away from solidarity – to reciprocity.
This is a very interesting and powerful insight.
Maupain has long held the primary tool that the ILO has at its disposal is “persuasion”. At the bottom of that belief is the further and even more basic view – that the ILO’s task is one of persuading members that it is in their self interest to pursue the cause of social justice – at work and elsewhere. It is not against their self interest. That is a view I share – but it is not the dominant view. It does however have the virtue of being at the core of the ILO’s constitutional principles – that social justice is the precondition to universal peace.
In his current reflections Maupain now makes clear that the well-known barriers to pursuit of that self interest are the ideas of free riders and the race to the bottom. These are very well-known ideas. Maupain now expresses clearly that the path away from that set of dilemmas is a process – available under the ILO constitution – of ongoing monitoring of reciprocity of efforts and commitments. This is a more sophisticated and procedurally plausible version of the well-known solution to prisoners’ dilemmas – binding, enforceable, in advance agreements to not enter the race. These are often just empty, and unfulfilled, pledges of solidarity. We need more. We need and can have an ongoing process based upon reciprocity.
Further, Francis also notes that that Declaration of Philadelphia is the “institutional loophole” (p11) through which the multilateral system can escape its existing silos and negotiate across issues – thus permitting coherence and broader forms of reciprocity which has been sadly lacking.
Finally – this is all a low-cost alternative to the headache of reforming the multilateral system.
Think – this move Francis is making is the same realistic one that the world trading system adopted. In economic theory all nations should unilaterally adopt free trade policies. But they do not. The world trading system in one of negotiation and reciprocal arrangements. So too, all nations should unilaterally follow sustainable social, economic, and environmental policies – it is, as the ILO constitution points our, the only way forward in the long term. But they do not. Francis is suggesting that reciprocity is the long-term answer to what nations see as their short-term self interest.
I close with three final remarks in the form of three questions.
First, if Francis is right, is Dani Rodrik wrong?
To my mind, of all the important thinkers who have tried to shed a general and bright light upon our large predicament, it is, in my view, Dani Rodrik who has provided the most illumination, and in a very accessible manner. His idea that we can see our current problems in terms of a “trilemma” is one of the most elegant and arresting insights of our times.
Rodrik’s well known and very important idea is the idea that we cannot have all three of 1. Hyper-globalization, 2. National sovereignty, and 3. Democratic politics. Of that set of three possible institutional arrangements, we can only have two at a time – and we need to “choose” which two we prefer. We can and need to choose the world we wish to live in. That is our trilemma.
On Rodrik’s analysis in the post-war era we chose and created a world of national sovereignty, and democratic politics, but not Hyper-globalization. We did so by means of constraining globalization through the “Bretton Woods Compromise”. The breakdown in that compromise, the ushering in of the era of hyper-globalization, led to the circumstances in which we now find ourselves.
For many people, such as Rodrik, the choice of hyper globalization and democratic politics means global governance, and loss of national sovereignty – but this remains simply a pipe dream in the world as we now find it. The idea of global democracy (to match up with a global economy) is just not politically imaginable. That is the reason it is not a serious possible answer. For others, it is not simply a matter of pragmatics but, rather, a matter of deep normative significance that we retain (an appropriate) attachment to the notion of the nation state.
Many, in 1919, wished for and imagined that they had designed an institution of “global democracy” – one which would produce global labour laws in the way that national legislators had hitherto created domestic labour legislation. That is, they imagined and wished for a world constituted by Rodrik’s pipe dream of a choice – global governance. That turned out to be a misconception, as Francis Maupain himself has reminded us. The centre of legal gravity for the ILO has always been, from the beginning and remains, its (possible) influence on domestic laws within its member states. I don’t think Maupain is offering up global governance and proving Rodrik wrong about its possibility. Rather, he is showing us a path back to a world of democratic politics and national sovereignty – but no longer hyper globalization and its free rider/ race to the bottom dynamics. This turns out to be the path back to the Declaration of Philadelphia. Via the ILO.
Second, another question: is it possible for Maupain to offer a purely procedural account of global justice? I don’t think so, and he himself offers a glimpse of the substantial values underlying his procedural account when he talks of empowering people as the basis of any acceptability of any reciprocal arrangements. This is the part of the paper which could use more development. And here I think Francis could usefully draw on the insights of another friend of the ILO – Amartya Sen – and his ideas of human freedom and capability.
Finally, a third question. At the outset of these remarks, I referred to Francis as a prince. I also described his life’s work as noble and of his career as a quest. Now, today, and rather remarkably (at p 14), Francis refers to the ILO as a “Sleeping Beauty” which needs to be roused from its regulatory slumber. Francis is a prince. The ILO is a Sleeping Beauty. Here is the question: are Francis’ ideas the kiss which is required to awaken the Sleeping Beauty?
We turn our gaze up the hill behind us as we contemplate that question. It is a complicated question, not the least because the Sleeping Beauty who slumbers there on the route des Morillons is a complicated creature. Does she prefer sleeping to waking and entering the fray? And, as in the fairy tale, there is a tripartite reality. Will the three constituents who control the Sleeping Beauty’s fate turn out to be good fairies? Can and should they bring themselves to end the Beauty’s regulatory slumber? Francis has just asked – and offered us a way of understanding - those crucial questions. (He has also given his answers.) For doing all of that we are, once again, all in his debt. Now we wait - to see if the Sleeping Beauty is awakened to a new post slumber and vital future. Francis has laid out the case for why this can and should happen. He has done all a Prince can do.