Engineering Equality. An Essay on European Anti-Discrimination Law – By Alexander Somek

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BOOK REVIEWSBeyond Constitutionalism. The Pluralist Structure of Postnational Law. By Nico Krisch.Oxford: OUP, 2010. xxiv + 358 pp. Hb. £50.00.

Although the repercussions of globalisation on the law have been discussed forsome time, they remain largely elusive. Comprehensive appraisals are still rare. BeyondConstitutionalism not only attempts to fill this gap but also presents a straightforwardthesis that, moreover, purports to run counter to mainstream wisdom. From bothdescriptive and normative perspectives, Nico Krisch makes the case for a ‘pluralistvision’ (69) of post-national law, thus repudiating searches for global constitutional-ism. To that purpose, he relies on findings from legal and political theory as well asphilosophy while bolstering his theoretical argument by empirical research.

For Krisch, ‘postnational law’ results from the increasing enmeshment of domesticand international law which is exacerbated by the emergence of multiple regionallyand functionally oriented regimes of international law and thereby transcends formerassumptions of dualism: ‘It overcomes the categorical separation between the spheres,without however merging them fully or necessarily defining the degree of authoritytheir different norms possess’ (12). Allegedly, this transformation of the law, whichfinds a predecessor in the process of European integration, raises a twofold challenge.Domestic law loses efficiency because subject matters previously regarded as the inter-nal affairs of states are increasingly regulated by international law. International law,for its part, lacks legitimacy to fulfil its accrued tasks because it still rests on the thinfoundation of state consent.

In an initial survey, from which the first of three parts of the book, which are roughlyequal in length, unfolds, Krisch detects essentially three strategies to cope withthe problem: containment, transfer and break. He discards containment, ie the retreatto domestic constitutional government, from the beginning. In his view, such with-drawal is not only impossible but also undesirable under conditions of globalisation.From the perspective of democratic theory, it suffers from underinclusiveness: ‘[U]nderany conception of democracy that relies (at least in part) on the degree to whichindividuals are affected by decisions, the range of those with a valid claim to participatein decision-making often goes well beyond the national community’ (21, referencesomitted).

Hence, Krisch contents himself with contrasting two alternative visions of theglobal legal order that correspond with transfer of and break with domestic models,respectively: constitutionalism versus pluralism. As he acknowledges that the meaningof both terms has always been contested, he further specifies the understanding thatanimates his study. On the one hand, he alludes to ‘foundational constitutionalism’as opposed to ‘limiting constitutionalism’ (47). As the former both institutionalisesand restricts public power by reconciling democracy and the rule of law, it appearssuperior to him as regards to its legitimacy credentials. On the other hand, he refersto ‘systemic pluralism’ in contrast to ‘institutional pluralism’ (71). As the formerforgoes even common background norms to resolve conflicts, it diametrically opposes

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European Law Journal, Vol. 18, No. 4, July 2012, pp. 595–605.© 2012 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UKand 350 Main Street, Malden, MA 02148, USA

constitutionalism on a structural account. Constitutionalism, then, ‘seeks to redeemthe modern, revolutionary promise of a human-made constitution as an antidote to theforces of history, power and chance’, whereas pluralism ‘seeks to discern a model oforder that relies less on unity and more on the heterarchical interaction of the variouslayers of law’ (23). In a pluralist legal order, similarly to early conceptions of federal-ism, the question of ultimate authority remains legally open. The relationships betweenthe various constituencies may solely be determined by political processes.

Krisch does not only take pluralism to adequately describe the structure ofpost-national law that allegedly corresponds with ‘the radically diverse society charac-teristic of the postnational space’ (23). Above all, he praises it as a normatively attrac-tive model of order. He counts among its main virtues its capacity to allow foradaptation and contestation while providing for checks and balances. Yet, crucially, heperceives it to rest upon the private and public autonomy of individuals: ‘[T]he plural,divided identities, loyalties, and allegiances that characterize postnational societyare better reflected in a multiplicity of orders than in an overarching framework thatimplies ultimate authority’ (103). Here, he ties in with the pluralist theory of the stategrounded in freedom of association that was popular in English political philosophy atthe beginning of the 20th century but indeed can be traced back to Otto von Gierke’stheory of corporations (see O. von Gierke, Das deutsche Genossenschaftsrecht, vol 1(Weidmann, 1868)).

In the middle part of the book, Krisch probes his thesis in on three paradigmaticareas of legal practice: the European human rights regime, the protection of individualrights in the case of United Nations sanctions against terrorist suspects and the regu-lation of risks ensuing from the trade in products containing genetically modifiedorganisms. Although Krisch concedes that his samples are far from comprehensive,he nevertheless claims to offer particularly strong and varied evidence for the existenceof a pluralist legal order. For instance, while the European human rights regime isoften considered as an example of post-national constitutionalisation, he rather detectsa heterarchical relationship between the different legal orders manifested by variousinterventions from national courts and countermoves by the European Court ofHuman Rights.

In the third and concluding part of the book, Krisch refines his theoretical argumentwith a view to the preceding empirical studies, defending it against four commonobjections: pluralism’s averseness to stable cooperation, its affinity to power, and itsdeficiencies as regards democracy and the rule of law. With respect to stability, Krischdoes not deny the risks of opportunistic behaviour and non-compliance, but he main-tains that a pluralist legal order strikes the right balance between rigidity and flexibility.In his view, it not only allows for incremental change but also provides for channelsof information and participation, especially yielding influence to domestic actors leftaside in the creation of a regime. Further, its openness to change ostensibly gains wideracceptance and thus proves ultimately more stable. Against that, Krisch downplayspluralism’s vulnerability to capture by powerful actors. He particularly emphasises thefactor of time that makes certain effects of regime design more visible, thereby trigger-ing engagement and protest by the initially excluded.

As regards the issue of democracy, Krisch cautiously refrains from explicating afull-blown theory. Instead, he directs attention towards two aspects. On the one hand,he points to the multidimensional character of democracy, thus reducing the signifi-cance of electoral mechanisms while reinvigorating the elements of contestation andrevisability that figure prominently in emancipatory theories of democracy. On the

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other hand, he stresses that pluralism’s openness reflects the plurality of governancesites and the multiplicity of peoples. The rule of law, especially its emanations oflegal certainty, predictability and individual rights, cannot claim absolute valuefor Krisch. Rather, it needs to be reconciled with democracy: ‘What matters, then, iswhether individual freedom is best promoted by subjection to clear rules or by partici-pation and deliberation over the content of the law’ (281).

In this vision, the relationships between the different legal orders crucially dependon what Krisch calls ‘interface norms’ (288) as distinguished from traditional conflict oflaws because of the tighter interlinkages they create. In the jurisprudence of bothnational and international courts, such norms appear as duties to ‘take into account’ thenorms of other orders or as patterns of conditional recognition expressed in various‘Solange’ formulas. As they may only be produced within the various orders themselves,there remains a constant risk of conflict. However, Krisch recognises a moral obligationof the different orders to mutually respect each other that flows from the publicand private autonomy of individuals. Ideally, then, the interface norms should beanimated by concerns of democracy and the rule of law: ‘If—and to the extent that—apolity can make a claim to strike a reasonable balance between the depth of self-government of its members and the inclusiveness of its scope, other polities ought torespect its norms as a matter of principle and not just on a case-by-case basis’ (295).

The book—as should be underlined from the outset—adds a major contribution tothe field. It contains an erudite study that entirely fulfils its interdisciplinary promise.What, at times, seems painted with a too broad brush more often reveals itself asa subtle allusion to the adept audience. Overall, the study is well composed and itsargument thoroughly developed in an impeccably elegant style. Its gist gains even moreappeal as it relies on practical examples. Yet the question arises of whether the contrastbetween the versions of constitutionalism and pluralism presented is not overdrawnboth in its analytical and normative components.

On the analytical side, Krisch’s picture of the post-national constellation completelyevades the supposedly ‘private’ regimes, such as the Internet Corporation for AssignedNames and Numbers regulating the domain name system, which significantly compli-cate the situation (see, eg, G.-P. Calliess, ‘Transnational Civil Regimes’, in V. Gessner(ed.), Contractual Certainty in International Trade (Hart, 2009), 215–238). As it sticksto the dichotomy of domestic and international law in this respect and deals withdevelopments in the Western hemisphere only, it turns out to be less heterogeneousthan it makes believe. By contrast, as Krisch himself points out on several occasions,some national societies, such as the US American, are anything but homogeneous.In this context, it should be noted that the underlying notion of society comes unex-plained. Therefore, uncertainty remains about whether regimes of international lawdesignated as ‘collectives’ (86), ‘polities’ (100) or ‘societal groups’ (231) are referred toas associations of states or individuals.

Correspondingly, on the normative side, Krisch’s model of post-national lawappears less as an epitome of systemic pluralism than as a kind of ‘responsive’ pluralism(the term is borrowed from P. Nonet and P. Selznick, Law and Society in Transition:Toward Responsive Law (Harper and Row, 1978); it has also been taken up byG. Teubner, ‘Substantive and Reflexive Elements in Modern Law’, (1983) 17 Law andSociety Review 239–285) in which the different constituencies must self-consciouslycurb their intrinsic rationalities by reflecting on themselves as parts of a larger whole.The result ought not to be deployed—quite the contrary. Yet if Krisch deduces suchobligation for mutual respect from the private and public autonomy of individuals and

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finds its legal expression in interface norms that meet concerns for democracy andthe rule of law, he not only recognises the ‘central vantage point’ (296) that he soforcefully denies but also remains faithful to constitutionalism in its essential tenets.After all, constitutionalism in its democratic variant, at least as it dominates in USAmerican constitutional theory to which Krisch mainly refers, is regarded as a basicframework that allows for collective self-determination even in pluralist societies (seeK. Loewenstein, Political Power and the Governmental Process (University of ChicagoPress, 2nd edn, 1965)).

Lars ViellechnerUniversity of Bremen

Engineering Equality. An Essay on European Anti-Discrimination Law. By AlexanderSomek. Oxford: OUP, 2011. xv + 213 pp. Hb. £60.00.

One of the most prominent evolutions in EU social law during the past 15 yearshas been the expansion in EU anti-discrimination law. Following an extension of theUnion’s legal competence in 1999, there has been a series of anti-discrimination direc-tives. These have broadened the range of prohibited grounds of discrimination whileat the same time applying the principle of equal treatment to a wider field of social life.A burgeoning array of academic literature has been written in response to the newlegislation and, more recently, on the inevitable downstream flow of litigation beforethe Court of Justice. Much of the existing literature concentrates on an interpretationof the provisions of the directives or the contents of the court’s judgments, as well aswider reflections on what this tells us about the Union’s concept of equality. Given therather crowded nature of this field, it is refreshing to encounter a book that takes agenuinely novel perspective and challenges the underlying assumptions of most of thecurrent academic literature.

This book adopts an avowedly critical view of the rise of EU anti-discriminationlaw. Its central argument is that anti-discrimination law is normatively deficient. Fun-damentally, Somek contends that ‘its ascendancy is concomitant to a displacement ofthat full-blown social policy which would be required for its own realization’ (18). Infurthering this argument, the author mounts a strong critique of the nature and contentof EU social policy, which he suggests firmly reflects a neoliberal outlook. He lamentsthe decline in an understanding of social policy as being concerned with the protectionof individuals and workers, and its replacement with a market-driven understanding ofsocial policy that reduces its goals to getting as many people as possible into employ-ment. Anti-discrimination law can be reconciled to this neoliberal perspective insofaras it concerns removing barriers to labour market participation; Somek argues that thisexplains why it has prospered within EU social policy. Yet the neoliberal marketideology upon which this approach is premised is unlikely to deliver equality inthe sense of a redistribution of power or capital within society. In this view, anti-discrimination law becomes a convenient fig leaf that distracts from the backgroundnakedness of EU social policy (eg page 51).

In forging this argument, Somek devotes considerable attention to a critical evalu-ation of the current state of EU social policy. He notes the restricted competences of theunion in this field and the detrimental effects on workers’ conditions that can arise fromthe internal market. In particular, the power of transnational businesses to threaten



relocation offers a strong bargaining tool to counter demands from workers (39). Healso identifies the challenges emerging from recent and notorious litigation, such asViking and Laval (49), arguing that this ‘gives rise to regulatory disarmament throughthe exercise of rights’ (48). While many labour law scholars share Somek’s concernsabout the implications of these cases and, more generally, the tendency for internalmarket objectives to outweigh those of social policy, there are places where his critiqueseems unduly dismissive of EU law in this sphere. He suggests that EU social policyis mostly concerned with ‘certain aspects of labour law that are particularly relevantto transnational businesses, such as workers’ representation in transnational firms,workers’ rights in case of transfers of undertakings, or more generally directed atlevelling the playing field’ (31, footnotes omitted). This neglects, for example, thesignificance of the Working Time Directive in establishing core labour rights relating topaid holidays and entitlement to rest. Indeed, the right to four weeks of paid holidayscreates a sharp distinction between EU labour standards and, for example, those foundin the USA. Moreover, the willingness of the Court of Justice to embody the rightsfound in the Working Time Directive with the status of fundamental social rights hasreinforced the protection of time for the individual to rest.

A particularly perceptive element of this book is the critique it offers of the rise ofnew governance and its role in shifting from the traditional labour law agendaof worker protection in favour of employment policy. The author suggests thatanti-discrimination law fits well with this agenda and its focus on enhancing employ-ment participation rates. In this regard, he notes the manner in which the anti-discrimination directives have been combined with a variety of EU promotionalprogrammes, such as ‘EQUAL’ or ‘PROGRESS,’ that deploy techniques of newgovernance, such as policy experimentation and peer learning strategies. Somek arguesthat this reflects a shift from law to management (57) and a depoliticisation of the field(81). Policy is reduced to a technocratic process of problem solving. His critiquesuggests that this disguises and suppresses deeper questions about the distribution ofpower and resources within the market economy. The paradigm is framed aroundfitting individuals into the labour market with no space for contesting whether thisshould always be the objective or whether there is a need to query how the labourmarket is currently organised. In this regard, Somek brings to the fore an underpin-ning assumption that often remains unspoken or unquestioned: everyone should par-ticipate in work to the fullest extent possible (96). In so far as anti-discrimination lawseeks to raise employment participation levels among under-represented groups, thiscan result in normative tensions with different visions of the good life. For example,anti-discrimination law tends to imply an assumption that all social groups wish tocompete in the labour market in the same way and would do so in the absence ofdiscriminatory barriers. It is, though, possible that individuals and groups differ intheir preferences; some might prioritise a different set of values where maximisingsuccess in the labour market is regarded as less valuable than the pursuit of othervalues in life, such as caring or religious activities.

Springing from the above, Somek argues for ‘decommodification’ as a strategy formaking equality more concerned with solidarity and less with equal opportunity toenter a competitive marketplace (189). His core critique is that anti-discrimination law,as it stands, provides some individuals with an opportunity to do better in the marketeconomy than they might have done, but it will not bring about a more egalitariansociety. Interestingly, he sees potential in the concept of accommodation duties (foundin disability law) as a timid step towards decommodification because they prescribe



adjustments to the norm. He implies that this could, if taken further, be a vehicle forcreating alternatives for individuals, such as being able to choose to work less.

One of the principal strengths of this book is the richness of its theoretical analysisand its thorough grounding in legal and political philosophy. Several chapters in thebook focus on the thorny relationship between direct and indirect discrimination,concepts that lie at the heart of most systems of anti-discrimination law. He makesa thought-provoking analysis of the role of intent within direct discrimination andargues that indirect discrimination should be the ‘fundamental category’ within anti-discrimination law (141). Yet even here he views anti-discrimination law as ultimatelydisappointing given the capacity for indirect discrimination to be justified by recourseto ‘business necessity’ and the scope for judicial conservatism in how this is interpreted(158). These sections of the book offer reflections on anti-discrimination law that wouldbe applicable beyond the specific case of EU anti-discrimination law, and indeed, theanalysis is enriched by his familiarity with experience and debates from the USA.

The originality of this book is highly commendable and it provides a valuablechallenge to ‘mainstream’ scholarship on anti-discrimination law. In seeking to unpicksome of the underlying assumptions of anti-discrimination law, it encourages criticalreflection on what this area of law seeks to achieve and how it interrelates with thewider body of social law and policy. While there is space to differ with the author onthe extent of the defects and limitations within anti-discrimination law, many wouldagree that the social goals behind anti-discrimination law can only be achieved throughbroader panoply of social law and policy and not simply individual rights to equaltreatment in the market.

Mark BellUniversity of Leicester

Market Integration and Public Services in the European Union. Edited by MariseCremona. Oxford: OUP, 2011. xxix + 255 pp. Hb. £50.00.

Following the apparent increasingly dominant trend in EU legal research for the timebeing, the present book consists of an edited collection of essays written by severalscholars under a common theme, with an editor having had to deal with the, in actualfact, often quite demanding task of reaching a result of a sufficient degree of coherence,originality, etc. As often also is the case, the book is a result of prior oral presentationsand discussions. In this case the occasion behind was the Academy of European Law’ssummer course on the Law of the European Union, which was held at the EuropeanUniversity Institute, Florence, in July 2008. Thus, the book is published in the series ‘TheCollected Courses of the Academy of European Law,’ where each annual set comprisesa book on human rights, a book on EU law and a further two thematic collections.

Somehow surprisingly, despite the growing popularity of this kind of works, it ishardly ever really explicitly discussed what the standards of such collections ideallyshould be. In my opinion at least the following two aspects—in simple terms—shouldbe given some weight: namely of course first to which degree a given volume worksout at the general level, however not forgetting that it will never be fair to judge it incomparison to a monograph as such; and second, it must after all be of interest how thequality of the individual contributions may be viewed. My points of view in this respecthave been shaped over the years especially while I have been through the process of



editing such kinds of books myself. Thus, I have had many rewarding discussions withvarious co-editors (among whom especially the following are of importance and highlyappreciated: Johan van de Gronden, Markus Krajewski, Ruth Nielsen and ErikaSzyszczak) on how to shape more ‘ideal’ edited volumes, however with the actual workalways being subject to given conditions (such as what in a given case is realistic tostrive for and what is not).

Regarding the issue as to how the present volume works at the overall level, thegeneral impression is in the positive. The choice of subject, ie market integration andpublic services in the EU, makes sense for such a kind of publication, as it has thequality of actually gaining from scrutiny from many different perspectives and authors.Thus, it may invite discussions on areas such as constitutional law, free movement law,competition law and state aid law, as well as more general discussions such as whichideology should rule in this area. It is in many respects also a rather important,fascinating, controversial and timely subject that has the potential of leading to aworthy piece of academic work.

The ‘framework’ chosen is crucial for providing coherence in such a collection ofessays. In this case, the ‘Introduction’ (Chapter 1) by the editor Marise Cremona inmany respects functions well. The reader is provided with helpful background knowl-edge of appropriate elements of the law as well as other elements such as the con-textual political and economic impact and explanations of the terminology used, allof which are important in order to understand the book in its entirety and the chap-ters to follow. There are also useful summaries of the individual chapters, whichbring the reader a good overview of the contours of the content of the book, easingthe subsequent task of either reading it entirely or perhaps more humbly choosingfragments thereof.

One particular challenge to these kinds of works is that it is rather difficult to posetruly meaningful research questions given the particular kind of working method, andconsequently, it may be difficult to provide conclusions as such. In line with this, atleast the purpose of the book is expressly formulated (at page 5) as it is to ‘ . . . presenta picture of the most important current issues relating to market integration and publicservices in the EU, while addressing some of the more underlying systemic questions.’Unfortunately, there are no conclusions as such, perhaps because of the rather gener-ally formulated purpose of the book. Perhaps the ambition of the work might notreally have been to draw any overall conclusions. Besides, we could probably all bemore ambitious in that regard, ie in defining research questions, methodology, conclu-sions, etc—including in edited works such as the one under review here.

An important challenge of these kinds of work is time. Often the process of setting upa course, seminar, conference or whatsoever, subsequently receiving drafts, editingthem, harmonising reference styles, etc, is incredibly time consuming, and it mightharm the timeliness of a publication of a book covering a great subject of contemporaryinterest. In this case the prior course in question was held in the summer of 2008,probably the preparations thereof had been initiated a year in advance (2007) and thebook came out approximately three years after the course took place (2011). Never-theless, the essays do not appear as outdated as such, as they generally intend to havea fairly general, contextual and problematising focus rather than, for instance, beingvery descriptive as to how the law stands at a given time.

The book will by be seen by many as having gained from having had a nativeEnglish-speaking editor. An often seen problem is that the publishers are not alwaystoo helpful in that regard and much of the work is left to the editor(s). However, the



task of the editor(s) is probably not to remove the individual style of the authors—including certain national characteristics reflected in the English applied—completely.Many of us nowadays write a particular (ie influenced from national legal writingculture) and seldom perfect kind of English, which to some degree must be tolerated.Otherwise, the authors would be misrepresented and the native English-speaking schol-ars will ‘monopolise’ academic publications in EU law as the barriers of entry wouldbecome too high.

In regard to the quality of the individual essays, one first consideration could concernwho had been invited to be part of the prior event and the book itself. Often, dependingon the subject, choices in that regard could, eg concern juniors ctr seniors—or a mix;‘famous’ scholars ctr possibly ‘rising stars’; a fairly equal amount of men and women;how many; from same country or, eg rather representatives from North, South, East,West, or only from big countries or also from smaller ones; only those having areputation as reliable scholars or great speakers; only lawyers or also persons fromother disciplines; only researchers or also practitioners, etc. In the present volume onlysix authors (seven if the editor is included) have contributed. They are all legal research-ers (although one is now a judge at the European Court of Justice (ECJ)), and they allhave rather strong academic reputations and expertise in the subject of the book. Theauthors come from several different Member States as opposed to only one; however,there are some ‘overlaps.’ To be more exact, the authors are Heike Schweitzer, HansW. Micklitz, Thomas von Danwitz, Christopher McCrudden, Roberto Mastroianniand Tamara K. Hervey. Together, these authors provide the reader with differentperspectives of market integration and public services. However, although not spelledout explicitly, the aim does not appear to be to give an absolutely exhaustive accountthereof. It may be supplemented by other publications available on the market, includ-ing, eg those with comparative analyses of national law and more interdisciplinaryanalyses.

All chapters contain many insightful analyses. Schweitzer’s chapter provides a moregeneral overview of services of general interest (SGEI), whereas Micklitz’s relates theseto consumer issues. The subsequent chapters concern the following issues: state aid law(von Danwitz), procurement law (McCrudden), public service media (Mastroianni)and health services (Hervey).

More precisely, Schweitzer is concerned with her claim that the persistent frictionbetween EU law and the Member States’ public service traditions is ultimately causedby fundamentally different conceptions of the role of markets and the role of states. Inmany ways, this chapter supplements the introductory chapter of the book very well.Micklitz has written a rather insightful chapter on an almost unexplored aspect ofSGEI and includes many original thoughts. Its main claim is that the EU rules onuniversal services contain the nucleus of an emerging social European private law.Von Danwitz has dedicated his analysis—which contains many valuable reflections—to the main elements of the established jurisprudence on state aid law in respect to theproblems arising from partially liberalised markets, and in particular to the crucialquestion of cross-subsidisation. The contribution by McCrudden mainly consists of amore classic analysis of the important Rüffert Case (ie Case C-346/06, Rüffert v LandNiedersachsen (2008) ECR I-1989), which contains many details and applies to somedegree a rather critical approach. In the contribution of Mastroianni, the focus ismoved from a particular field of law to a particular public service, namely the publicservice media. Very interestingly, the particular interest taken by the author is how theprevalence of public interest considerations over market integration in this sector is



enshrined in legislation and affirmed in the case law of the ECJ. Also the final chapter,by Hervey, concerns a particular public service, namely that of public health service,which naturally has more social elements connected with it than the media. It demon-strates the author’s impressive knowledge and understanding of the sector.

All in all, collections of essays like the one at hand may serve the purpose of bringingtogether what often constitutes rather fragmented areas of EU law and may alreadyin that respect constitute an invaluable contribution. The present piece of work to alarge degree constitutes such. In any publication multiple choices—however not alwaysnecessarily totally revealed to the reader—have to be made (eg level of editorial quality,criteria for the selection of authors, choice of subject, length of chapters, kinds ofindexes). Subsequently, it may be estimated whether the sum of the choices made makessense. Considering the present publication on the premises it was shaped, it may beviewed as doing so, and it constitutes in many respects an important and intelligentcontribution to the development of the understanding of market integration and publicservices in EU law, which is important in defining the road to be taken in the futureorganisation thereof. One could always find elements to be critical of, eg say that thebook could contain other aspects such as detailed analyses of fundamental rights, thesolidarity aspect, the distribution of competences and comparative analyses of nationallaw, but as said it does not seem to be the aim thereof to provide the reader with the fulland final account of public services in the EU. Considering this, the book can thus behighly recommended.

Ulla NeergaardUniversity of Copenhagen

A Right to Care? Unpaid Work in European Employment Law. By Nicole Busby.Oxford: OUP, 2011. xviii + 209 pp. Hb. £70.00.

The subject that is addressed by Nicole Busby is a challenge within all labour marketsof the EU Member States: the reconciliation of unpaid care work with paid labour.While from an economic perspective the EU strives for the participation of both menand women on the labour market, unpaid care work is getting into hot water. Accord-ing to Busby, the unpaid care/paid employment conflict is severely gendered andcan result in the non-achievement of personal goals and aspirations as well as in highfinancial cost through low wages, lost opportunities for career advancement and poorpension entitlement at the end of the working life. To overcome the oppression ofunpaid care work, Busby proposes a gender-free right to care for all workers. Insubstantiation of her plea for this right, Busby first defines a theoretical framework tojustify the introduction of the right to care in the context of the current neoliberalEuropean employment law. Second, she analyses to what extent the right to care fitswithin the currently existing European employment acquis.

Before carrying out the two analyses, Busby formulates a few claims that are impor-tant for the understanding of her normative points of departure. In short, she assumesthat a common unifying feature is our humanity, which finds, among others, itsexpression in our intrinsic need for affective intimate relationships such as care rela-tionships. While dependency at different moments in the life cycle is a fundamentalcomponent of the human condition, these care-relationships give necessary rise torights and obligations. However, when considering EU employment law, ‘difference’ is



only accommodated with respect to the protection against discrimination and the‘outsourcing’ of care, putting the emphasis on formal care provisions for both childrenand adult dependants. These choices result from the fact that the primary aims of EUemployment law are grounded in its economic imperative and are thus conformed tothe market-based notions of commodification. Therefore, the apparent mismatchbetween liberalism and the reconciliation of unpaid care and paid labour is to be foundin the neoliberal turn that has taken root in EU policy. The result is neglect of theperspective of caregivers, which, however, could be countered by a legally recognisedright to care that is compatible with the liberal underpinnings of EU law.

The theoretical context of the justification of the right to care is based on theCapability Approach (CA), in which Busby finds an adequate normative framework toevaluate EU employment law because it is also based on liberalism. She acknowledgesthat Nussbaum’s and Sen’s CA differ in some important aspects. Whereas theyboth focus on what people are actually able to do, only Nussbaum provides a list ofcapabilities that stipulates which capabilities are important to human lives, amongwhich, for example, is the capability to develop intimate relationships. Sen, on the otherhand, refuses to provide a list of basic capabilities; instead, he offers a broad frameworkthat is based on the idea that all individuals possess sufficient recourses that enableindividuals to develop the capacity to be free. What individuals need depends on thespecific context in which people tend to assign different values to different functions.Therefore, according to Sen, the use of the CA in public policy should be decided uponin democratic and social choice procedures. For Busby, both Nussbaum’s and Sen’sapproach are valuable to EU law design: Nussbaum’s list can establish a constitutionalbasis on which EU policy may be grounded and Sen’s more reflexive CA addresses theneed for flexible arrangements in EU law.

The question can, however, be raised as to what extent the CA suits Busby’s projectto defend a right to care that is rooted in liberalism. Nussbaum’s list of basic capabili-ties is based on a thick theory of the human good, while that endorsed by most liberalsis based on a thin theory. Busby’s own support for long pregnancy leaves in EU lawreveals this tension between a thick theory of the good and the neutrality we usuallyfind in liberalism. Furthermore, it is questionable to what extent Nussbaum’s basiclist addresses the value of gender equality because it consists of minimal standards only.Sen’s CA, on the other hand, offers an evaluative framework instead of a normativetheory. Yet it goes without saying that we need a normative theory to stipulate whichcapabilities should be taken into account or how different capabilities should be aggre-gated. With respect to the right to care, the CA should at least address the question ofwhether we must prefer the capability to care over the capability to engage in rewardingpaid work activities. Then, as has been shown in empirical research, instruments suchas long parental leaves may also impede female job careers. On its own, without anormative theory, Sen’s CA will in any case not be able to stipulate how a right to careshould be related and balanced to other rights. In our opinion, regarding the sources ofinspirations that Busby presents in her concluding chapter, the UK’s Disability Dis-crimination Act and the specific protection the Anti-Discrimination Act of Australiaoffers for carers, her argument for a right to care could also be justified by theoriesthat are developed within ‘difference feminism.’ Like Busby, this strand argues, amongother things, that the law must recognise or accommodate difference.

The second part of Busby’s defence for a right to care is an analysis of how thisright could fit within the EU legal and political framework that currently exists. Busbyidentifies the anti-discrimination and equal treatment legislation, the case-law of the



Court of Justice of the EU (CoJ) in respect of those directives and the Europeanemployment strategy (EES). The analysis Busby undertakes here follows a traditionallegal method: description and normative interpretation of the possibilities providedby the directives and of the interpretation of the case-law of the CoJ, followed by aconclusion of what should be done to solve the conflict. In this analysis Busby putsmuch emphasis on the role of the CoJ because she sees in this the only institution thatis capable of giving effect to the treaty promises of the elimination of discriminationbetween men and women alongside improvements of living and working conditions.However, her analysis also shows that the court is not able to make full use of itscapacity, in particular because of its ‘dominant ideology of motherhood in its essen-tialist notion of women’s existence and being predetermined by her biological andpsychological predication for all things care-related.’ Consequently, there is an obstruc-tive discrepancy between gender equality and a gender-free legislative and policy frame-work of work/family reconciliation.

To overcome this obstructive discrepancy, Busby finds two sources of inspirationwe referred to earlier, namely the UK’s Disability Discrimination Act and the Anti-Discrimination legislation of Australia. Two points come from these sources of inspi-ration. First, carers should be identified as a specific category that needs protection, andsecond, to overcome the tension between anti-discrimination and work/family recon-ciliation, the European approach of anti-discrimination should move from a proce-dural approach to a substantive approach. Unfortunately, she leaves open how thisshould be achieved within the EU. Nonetheless, the attentive reader will find possibili-ties for this within the EU framework as identified by Busby. While Busby only looksat them individually, she overlooks their capacity for interaction and creation of hybridstructures. In particular, she overlooks this capacity of the EES because it has provento be able to interact with different instruments on the same subject and to create anepistemic community in which common concepts can be developed and furthered byother EU integration instruments. Although these processes are difficult to steer andcontrol and may take a long time to manifest themselves, in the long run it would be afruitful path for including the much needed, gender-free right to care to overcome thetension of the reconciliation of unpaid care work and paid labour.

Finally, if we presume that based on hybrid structures it is possible to achieve agender-free right to care as proposed by Busby, then who is going to benefit from thisright? As social research has shown, the presence of paternity rights did not result in asubstantial increase in the involvement of men in unpaid care work. Therefore, it willbe mostly women who will benefit from this right. Yet at the same time, this rightmay impede their paid working careers because employers tend to anticipate on this.Moreover, a publicly recognised right to care (equally accessible for both sexes) mightprevent those who traditionally perform care tasks, mostly women, to spend (more)time on paid work activities. This makes us wonder whether it is really possible tocreate a true gender-free right to care that equalises both as far as possible the contri-butions made by men and women to the informal provision of care and the financialcosts made by both sexes in terms of career advancement.

Beryl ter Haar and Anja EleveldUniversity of Leiden



Engineering Equality. An Essay on European Anti-Discrimination Law – By Alexander Somek

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