A farewell to 'protection': rethinking the labour law-market nexus

In the course of the 19th century ‘protection’ of workers has gradually gained legitimacy as an important aim of labour legislation. Labour law has tended to be opposed, in terms of a counterveiling power’, to a naturalized labour market. In the paper I analyse the use of the term ‘protection’ and argue that this opposition and the conception of ‘protection’ as compensating for a one-sided vulnerability of employees are unnecessary impediments to the further development of labour law. The development of markets has always been indissoluble interweaved with that of regulation. The model of the market, rather than ‘describe’ economic action (as economists tend to see it), provides for a normative model in its own way.
If ‘protection’ would be discarded as its aim, how could labour law than be legitimized otherwise? In the second part of the paper I propose to go along with the market view of labour relations, in order to inquire to what extent basic labour law rules can be derived from functional requirements of labour markets - provided that we use social theory on market action to reach out for a broader conception of what is required for a labour market to function. A broader conception may include, among others, requirements as to the continuity of existence of markets themselves. The possibilities as well as the restrictions of such an approach are discussed.