Development of the "Right to Work" Theory: Focusing on discussions on the Anglo-American labor law (Japanese)

In the 1980s, the problems of structural unemployment and high unemployment among the youth intensified in the United States and the United Kingdom. As countermeasures to those problems, a series of new policies—such as the "flexibilization" of the labor market, relaxation of the labor law and regulation, active labor market policies (ALMP), and workfare policies—were introduced. In the process, a great deal of discussion occurred among academics and practitioners of the Anglo-American academic labor law as to how to regulate the labor market, thereby developing new branches of the labor law theory. The right to work theory is one of them. Discussions in the United States and the United Kingdom have been particularly substantive because laws in both countries have no explicit provisions for the constitutional right to work. A theory for the procedural review of the right to work, which uses the acceptance of "decent work" (or "dignified work") for all as a guiding norm, underlines the importance of employment policy decisions based on thoughtful consideration and deliberation among parties concerned as well as of the process of identifying and examining problems that may result from the institutionalization of such policy (reflexive law approach). Meanwhile, with regard to the compulsive aspect of the workfare policy, it points to the need to reaffirm the importance of the freedom to work, an aspect that constitutes the normative content of the right to work, from the viewpoint of guaranteeing such right as defined broadly and not limited to the guarantee of basic income. Furthermore, in order to prevent the workfare policy from forcing people to accept indecent work conditions and become working poor, it is argued that the right to work should be defined as the right to choose (decent, suitable and "rewarding" work), whereby workers should be able to refuse—without losing unemployment benefits—a job that would not help them to develop their career, improve future job prospects, or enhance their skills and ability. Today, the Japanese labor market has the same problems as those in the United States and the United Kingdom. The development of arguments on the right to work theory in the two countries indicates the necessity of redefining the significance of "work" and having a normative discussion on the issue.