“Adversarial legalism” in the German system of industrial relations?

Abstract

The US has a distinctive legal style, which Robert Kagan has called "adversarial legalism." It is marked by a pattern of political decisionmaking and conflict resolution in which the courtrooms and the law are systematically exploited as political arenas for making and implementing political settlements and policy outlines. In this article it is argued that a "German way" of adversarial legalism is about to emerge in the German industrial relations system. Economic liberalization, the fragmentation and decentralization of lawmaking authority in the political sphere, and the common-law-like nature of German labor law have contributed to the appearance of a judicialized pattern of governance. Nonetheless, Germany is not converging on the "American way of law" and major differences are expected to persist in the years to come.

The other face of Eurolegalism: The multifaceted convergence of national enforcement styles

“…Our case study shows that the adoption of more stringent and detailed EU packaging waste legislation has caused the Dutch enforcement style to become more legalistic: moving from a persuasive to an insistent style. This finding is in line with the observation by Rehder (, p. 231) that in the field of industrial relations, a specific German path and style of adversarial legalism is developing. But particularly, the case of the Netherlands illustrates that stricter EU legislation precludes the use of more informal approaches, such as the Covenant, which in turn influenced the domestic enforcement style.…”

“…Second, in doing so we add to the broader literature on Eurolegalism, which so far has been limited to changes in litigation patterns (Kelemen , ). Third, we meet the call in the literature to provide case studies reflecting complex empirical pictures of regulatory convergence (Rehder , p. 218). This is important because the aggregate indicators so far used to analyze Eurolegalism may reflect trends or patterns not related to Eurolegalism (Kelemen , p. 39).…”

“…As a result of the interaction between legal institutions and legal cultural values, enforcement styles are claimed to be resistant to change (Unger & Van Waarden , p. 28). Finally, according to Rehder () the introduction of new legal concepts or practices may function as “legal irritants” (Teubner , p. 12), triggering new divergence instead of convergence.…”

Eurolegalism and Democracy

“…However, in this field, too, judicialization is making its mark. Rehder's (2009) study of developments in industrial relations in Germany concludes that a variant of adversarial legalism has taken hold as the social partners increasingly turn to the courts for conflict resolution. Outside of Germany, the ECJ's rulings on the right to strike and the freedom to provide services in Viking , Laval and Rüffert , which were discussed above, demonstrate how EU litigation is impacting Scandinavian systems of industrial relations.…”

Adversarialism versus legalism: Juridification and litigation in corporate governance reform

“…4 4 The common law–civil law distinction is often exaggerated (Rehder 2009). However, the form and substance of law and regulation varies considerably and systematically across liberal and non‐liberal national political economies (c.f.…”