Leaving Labour Law’s Pragmatic and Purposive Fortress Behind: Canadian Union Successor Rights Law as a Case Study

In this article, I analyze a series of Canadian cases on union successor rights defining the circumstances in which labour rights should be transferred to a successor entity in the context of business sales, restructuring and subcontracting. My analysis casts doubt on a globally influential theory of legal interpretation, which I call the “old legality.” According to this theory, labour law is made not through conventional legal reasoning but through non-legal, pragmatic, and purposive applications of loose industrial relations standards. I claim that the old legality paradigm is analytically inaccurate and has the perverse effect of normalizing the status quo of the post-war labour law regime in a context where its insufficiency is widely acknowledged. Against the old legality, I propose a new approach to studying and teaching labour law doctrine, which I apply here to union successor rights law. This approach portrays labour law reasoning not as pragmatic and purposive but as riven by continuously recurring and incommensurable legal policy conflicts that render purposive argument inconclusive. I suggest that, by constantly bringing these conflicts to the fore in their research and teaching, labour law academics can contribute to opening up the status quo for normative contestation and help create possibilities for ambitious re-regulation of living conditions in the direction of, say, radical equality, participation, and redistribution