Labor courts and workers' rights in Yugoslavia: A case study of the contradictions of socialist legal theory and practice

ROBERT M. HAYDEN

Labor Courts and Workers’ Rights in Yugoslavia: A Case Study of the Contradictions of Socialist Legal Theory and Practice*

Introduction It has long been a basic tenet of communist legal theory that the judicial function should be socialized, executed by laymen rather than by professional judges. Comrades’ courts and other forms of lay tribunals were established in the Soviet Union in the 192Os, and although these institutions withered with the strengthening of the Stalinist state, some of them were resurrected in the post-Stalin reforms. By the 195Os, some forms of comrades’ courts had been created in all of the Eastern European socialist countries, except for Yugoslavia and perhaps that great unknown of Europe, Albania.’ The lack of social or comrades’ courts in Yugoslavia is somewhat surprising, because since shortly after the break with Stalin in 1948, the Yugoslavs have worked to develop a new variant of communism based on the principles of socialist self-management.* heart of self-management ideology is decentralization-workers should manage

The their

own affairs-and one might expect that this principle should also be applied to the legal system. And in fact it has been so applied: in 1974, a new Constitution, based on the principles of socialist self-management, came into effect in Yugoslavia and called for the creation of social, or self-management, courts. This paper will discuss the workings of the most important of the Yugoslav selfmanagement courts, the Courts of Associated Labor, using data gathered by the author in the course of an ethnographic study of the court in Beograd. The work of these courts will be compared with that of their East German counterparts and of the West German labor courts, particularly in regard to who uses the courts and for what ends. It will be ‘The research reported in this paper was supported in part by the Fulbright Exchange Program with Yugoslavia, the American Bar Foundation, and the National Science Foundation under Grant No. SES8409554. An earlier version of this paper was presented at the 1984 annual meeting of the American Association for the Advancement of Slavic Studies. The author wishes to thank Inga Markovits and Thomas Oleszczuk for their comments on earlier drafts, and to grant them the usual dispensation from responsibility for the work. 1. Basic literature on the Soviet comrades’ courts and similar institutions in Eastern European socialist countries includes Harold Berman and James Spindler, ‘Soviet Comrades’ Courts’, Warhinglon Law Review ‘The Comrades’ Court: Molder and Keeper of 38, no. 4 (Winter, 1963), p. 842; Bernard Ramundo, 1965), p. 692; William Butler, Socialist Morality’, George Washingiwz Law Review 33, no. 3 (March, ‘Comradely Justice in Eastern Europe’, Current Legal Problems 25 (1972), p. 200; idem, ‘Comradely Justice Revised’, Review of&cioltst Law 3, no. 3 (September, 1977), p. 325. 2. See generally Denison R&now, The YugoslavExperiment, 1948-1974 (Berkeley: University ofCalifornia Press, 1977). STUDIES IN COMPARATIVE COMMUNISM VOL. XVIII, 0039-3592/85/04

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$3.00

@ 1985 U mversity

No.

4, WIN IXR 1985, 247-260

of Southern

California

STUDIES IN COMPARATIVECOMMUNISM

248

seen that the theory of social courts contains a contradiction, in that social courts are unlikely to be used by ordinary members of society, but rather mainly by those who are politically powerful as a means of social control. The contradiction of social courts is of more than purely academic concern, because in recent years there has been an interest in American legal circles in the idea of creating informal, non-professional courts for handling minor disputes.3 Some of the advocates of such alternative

courts

have

cited the socialist

comrades’

courts

as important

examples of informal justice in industrial societies.4 We will argue that the comparison has been misplaced, because social courts do not, and probably can not, function in accordance with the ideology that has been used to justify them. An analysis of the contradictions

of the theory of social courts can thus be used to explain what has been

widely seen as a basic failing of the new alternative courts, their inability to attract cases.5 Thus this essay, though dealing primarily with the theory and practice of socialist law, has some relevance United States as well.

The Ideal of Workers’ The

adoption

to issues concerning

the administration

of civil justice

in the

Courts

of the present,

self-management

Constitution

of Yugoslavia

in 1974,

which led to a decentralization of the country’s political system,6 also decentralized the higher elements of the judicial system. In place of the former unified court system, headed by the Supreme Court of Yugoslavia, a more federal system has been created in which, for most purposes, the Supreme Court of each Republic and Province is final The former Supreme Court of Yugoslavia, which within its territorial jurisdiction. earlier had wide appellate jurisdiction, has very narrow competence. Now called the Federal Court, its jurisdiction is limited to cases involving federal laws and organs, conflicts between constituent units of the Federation, disputes over the jurisdiction of other courts, final appeals of death sentences, and some other matters within the competence of the Federation.7 As a judge of that court has noted, ‘the Federal Court is not the highest court in the land, nor the supreme court, but rather-the court of the federation’.a Uniformity of judicial practice is encouraged by joint sessions of representatives of the various Republican and provincial Supreme Courts, but cannot be mandated

by any court superior to them.g

3. See generally Richard Abel, ed., The Politics ofInformalJ~~tice (New York: Academic Press, 1982), and Roman Tomasic and Malcom Feeley , eds., Neighborhood Justice: Assessment of an Emerging Idea (New York: Longman, 1982). 4. See, e.g., Frederick Snyder, ‘Soviet Union Visit Yields Dispute Settlement Insights’, Dispute Resolution no. 5 (Winter, 1980), p, 11; Daniel McGillis and Joan Mullen, Neighborhood Justice Centers: An Analysis of PotentialModels (Washington: US Department ofJustice, 1977); Eric Fisher, ‘Comment: Community Courts: An Alternative to Conventional Criminal Adjudication’, American University Law Review 24, nos. 4-5 (Summer, 1975), p. 1253. 5. Jessica Pearson, ‘An Evaluation of Alternatives to Court Adjudication’, Jurtice SystemJournal 7, no. 3 ‘The Politics of Participation and Non-participation in (Winter, 1982), p. 420; Christine Harrington, Dispute Processes’, Law and Policy 6, MI. 2 (April, 1984), p. 203; Sally Merry and Susan Silbey, ‘What Do Plaintiffs Want? Reexamining the Concept of Dispute’, JwticeSystem Journal 9, no. 2 (Summer, 1984), p. 151. 6. Steven Burg, Conzlcl and Cohesion in Social& Yugoslavia(Princeton: Princeton University Press, 1983); see also R&now, op. cit. n. 2. 7. Zakon o Savenrom sudu, Sl. list SFRJ 21173, Art. 10. 8. Mirko Perovid, Pravosudni SistemJug&z+ (Beograd: Partizanska Knjiga, 1980), p. 102. 9. Z&m p, 107. The 1974 Constitution (Chapter VII, Articles 374-396) al so continues the Constitutional Courts of the Federation and of the individual Republics and Provinces, which were originally created by the Yugoslau Suruey 1979 [November], p. 57). Constitution of 1963 (see Asen GrupEe, ‘Constitutional Courts’,

Labor

The decentralization regular

court system,

Courts and Workers’ Rights in Yugoslavia

of the judicial however.

system did not stop with this restructuring

Article

91 (cf. Article

249

of the

217) of the 1974 Constitution

provides that ‘Judicial functions shall be performed by regular courts as instruments of state power, and by self-management courts.’ The Yugoslavs see these latter courts as new forms of judicial institutions, to match the principles of self-management underlying the Constitution. lo While many kinds of social relations remain regulated by the regular courts, the Constitution has put others, particularly those involving work relations and self-management, under the new, separate, self-management courts. Articles 225 and 226 of the 1974 constitution call for the creation of several kinds of self-management courts, the most important being the Courts of Associated Labor (CAL).”

These self-management

courts are empowered

to decide

specific kinds of disputes . arising out of socio-economic and other self-management relations, and also disputes entrusted to them by working people which disputes arise out of mutual relations which they independently regulate, or which stem from rights of which they freely dispose, unless it is specified by statute that certain kinds of disputes must be decided by regular courts. l2 There is evidence that these constitutional

provisions may have been unclear even to

the drafters of the Constitution . l3 Nevertheless, they were implemented by the creation of the various kinds of self-management courts, particularly the Courts of Associated Labor.14 The latter were established by Federal statute in 1974,15 and shortly thereafter in the Republics and Autonomous Provinces. While the specifics of the jurisdiction of these courts are complex (the Federal Statute on Courts of Associated Labor lists 33 specific jurisdictional categories in Article 18), their general charge is to resolve disputes involving work relations: disputes between organizations (BOALs),16 and between individual workers and their organizations. The key concept here is the resolution of disputes. While the Federal Statute calls on the CAL to decide certain kinds of legal questions (e.g., whether the conditions for forming a BOAL (Gavanje

have been met [Article 18(3)]), 1 ‘t a 1so speaks of the resolution of disputes workers (Article 19) and of the duty of the court to restore

sporova) between

relations (urediti odnose) which have been disturbed (Article 34). A judge of the CAL of Serbia states that the court ‘must re-establish the self-management relations that have

These courts assess the constitutionality oflegislation, and are thus considered to be separate from the regular cwlrt systems. Yugoslau 10. Perovid, op. cit. n. 8, pp. 145-148; Milenko Jovanovid, ‘The Judicial System in Yugoslavia’, Law 1976 (Z), p. 23. 11. These courts are described at some length in Milislav MandiC, ‘Courts of Associated Labour’, Yugoslau Survey 19, no. 2 (May, 1978), p. 71; Veroljub Rajovid, Sudovi Udmzenog Rada (Beograd: Novinsko-izdavacka ‘Who Wants Informal Courts? Paradoxical ustanova Sluibeni List SFRJ, 1979); and Robert Hayden, Evidence from a Yugoslav Attempt to Create Workers’ Courts for Labor Cases’, American Bar Foundation ResearchJournal 1985 (Z), p. 293-326. 12. Constitution, Article 224. 13. Rusinow, op. cit. n. 2, p. 329. 14. Other kinds of self-management courts specified in Article 225 of the Constitution are arbitration arbitration (izbrani tribunals (arbitraie), conciliation councils (mirouna u&a), and ‘chosen’ or ‘voluntary’ sudovi). None of these other courts is considered to be as important as the CAL, which is the only selfmanagement court to which an entire Article of the Constitution (Article 226) is devoted. 15. The Federal statute was the Law on Courts of Associated Labor (Z&w D&d&m udruienog rada, SI. list SFRJ 24/74). The various Republican and Provincial statutes creating these courts can be found in Rajovic’, op. cit. n. 11, pp. 289-374. 16. BOAL: Basic Organization of Associated Labor (Osnoona organizncija udruicnog rada), the basic unit of the Yugoslav economy.

250

S.TUDIES

IN

COMPARATILICOMMUNISM

been disrupted’. l7 Towards that end, the court is obliged to determine

factual situations

for itself, regardless of the representations of the parties (Article 28). Procedural rules are less strict than in regular courts. To stress the desired lack of adversariness, the usual court terminologies of ‘accuser’ (tu,!%uc) and ‘accused’ (tu&nik) have replaced by ‘initiator’ (predlagu?) and ‘other participant’ (drugi uhwzik). Most of the judges are not professional judges, but rather workers, elected from their BOALs, who hear cases two days a month. The desired difference between self-management and regular courts was described by a participant in a conference on ‘New Constitutional Judicial Institutions’ in Beograd in 1974 as follows: Disputes which are decided by the courts of associated labor, so-called “self-management disputes,” do not have the character of lawsuits between parties, because there are no parties in dispute, but rather participants, and procedure for these disputes is different in substance from ordinary civil procedure. The accusation as a means of initiating procedures has been changed to the proposal of a participant, and the judgment has become a decision of the court with which the disputed situation associated

labor,

management

in greater

measure

law but also legal morality.

in which one man stands against another, which

more

relationship.

people

are

involved

and

is untied and relations restored.

than

the

other

courts,

applies

The court of

not

only

self-

It must do that because it does not decide a lawsuit but rather puts in order an internal relationship have

an

interest

in

the

restoration

in

of that

l8

In form, the CAL seem similar to the ‘Comrades’ Courts’ found in almost all of the socialist countries of Eastern Europe and in the Soviet Union. These courts are officially considered to be ‘new’ alternatives to regular courts, non-coercive, staffed by nonprofessionals, informal and non-bureaucratic. They are meant to socialize the judicial function

by resolving

factory. Such informal,

disputes within the community,

or, in labor cases, within the

non-state courts are generally considered to be manifestations

of

the withering of the state. I9 The Yugoslavs have put more stress on the immediate importance of this reduction of the State than Soviet theory has recognized since the start of the Stalin period,20 and the theory of self-management law is explicit on this point: ‘self-management law regulates those social relations which state law has ceased to regulate’.21 As the state grows less important, self-management law should increasingly supplant state law, and self-management courts should correspondingly supplant state courts.22 As noted earlier, comrades’ courts have been cited as inspirational examples of how informal courts can be effected in modern, industrial societies. On the other hand, specialists in Eastern European law have been much less sanguine about the effectiveness of comrades’ courts as institutions protecting workers’ rights. In perhaps the strongest challenge to official socialist views of these courts, Inga Markovits has argued that they are inherently authoritarian, based on a command theory of law that underlies 17. MandiC, op. cit. n. 11, p. 72. 18. Miodrag TrifunoviC, ‘Sudovi udruienog rada’, Arhiu za Pravne t DrlLitvene Nauke 1975(l), Uanuary-March), p. 17, at p. 25 19. John Hazard, William Butler and Peter Maggs, The Soviet Legal ystem (3d ed.) (Dobbs Ferry: Oceana Publications, for the Parker School of Columbia University, 1977), pp. 15-16. 20. Ivo Lapenna, State and Law: Soviet and Yugoslau Theory (New Haven: Yale University Press, 1964). 21. Aleksandar NikoliC and Milan PetroviC, Sam~upraunoPraoo (Beograd: Novinsko-izdavacka ustanoca, Sluibeni List SFRJ, 1980), p. 9. 22. Idm, p. 46.

Labor Courts and Workers

251

’ Rights in Yugoslavia

all of socialist legality.23 She bases her argument

in large part on statistics concerning

the

use of social courts and conflict commissions in East Germany, which indicate that these courts are mainly used to discipline individuals. This is not a uniquely East German phenomenon, however, as most analysts of Soviet comrades’ courts view those institutions as primarily disciplinary instruments.24 From this perspective, the Yugoslav CAL are particularly interesting because, as will be seen in the next section, statistics on their use indicate that they are primarily used for enforcing workers’ rights. We will first consider the evidence on how the CAL are used, in comparison with other socialist courts. We will then discuss some of the political issues that have arisen because of the ways in which the caseloads of the CAL have developed, and will conclude with a consideration of some of the implications of the experience of the CAL for several issues in socialist and comparative law, and Yugoslav politics. Worker’s Ends?

Courts

and Workers’

Rights,

or Who

is Using

the Courts,

for What

In her analyses comparing socialist and bourgeois concepts of rights, Markovits has stressed the importance of looking at who uses courts, for what purposes. Thus she compares the patterns of use of East German conflict commissions and their counterparts,

the labor courts in West Germany,

and finds striking differences

in who

initiates cases. In 1982, individual workers were the plaintiffs in only 25% of the cases before the East German conflict commissions. These were ‘disputes involving pay, bonuses, work tasks, innovation, rewards, vacations, etc.‘-in other words, cases in which individual workers attempted to obtain their individual entitlewentp. The remaining 75 % of the cases were brought by enterprises against workers, to’discipline the latter for various breaches of work regulations and responsibilities. In cpntpet, in that same year only 3.8 % of the cases in the West German labor courts were initiated by employers.*5 While it is true that many, perhaps most, of these West German cases concern the provision of post-termination benefi@ and thus may be better described as ex-employee initiated cases, the point remains that the major use of the West German court is to enforce the rights of individuals. A different measurement of court use that points to the same conclusion is the number of individually initiated cases per unit of worker population. Again the disparity between East and West Germany is striking. Markovits27 finds that in 1977, only 17 in 10 000 East German workers initiated cases in the conflict commissions, while 143 in 10 000 West German workers brought cases in the labor courts. Again, it seems that the West German court is invoked by individuals to enforce their rights, while the East German

court is used for social control.

23. Inga Markovits, ‘Law or Order-Constitutionalism and Legality in Eastern Europe’, Stanford Law Review 34, no. 3 (February, 1982), p. 513; idem, ‘Social Courts in East Germany’, paper presented at the annual meeting of the Law and Society Association, Boston, MA, June 7-10, 1984; idem, ‘Socialist vs. Bourgeois Rights-An East-West German Comparison’, University ofChzcago Law Review 45, no. 3 (Spring, 1978), p. 612. 24. Butler, ‘Gomradely Justice Revised’, op. cit. n. 1; Paul Stephan, ‘Comrades’ Courts and Labor Discipline Since Brezhnev’, paper presented at the annual meeting of the Law and Society Association, Boston, MA, June 7-10, 1984. 25. Markovits, ‘Social Courts’, op. cit. n. 23, pp. 4-5. 26. Erhard Blankenburg, Rolf Rogowski and Siegfried Schiinholz, ‘Phenomena of Legqlization in a German Labour Court’, Euro,!mn Yearbook o/the Socmlog ofLaw 1978, p, 33. 27. Markwits, ‘Law or Order’, op. cit. n. 23, pp. 553-554.

252

STUDIES IN COMPARATIVECOMMUNISM

Because of the potential for variation in subject-matter jurisdictions, comparisons between courts are always problematical. Nevertheless, a rough comparison of the caseloads of some of the CAL and the East and West German

courts is possible. Figures are

available on the work of the CAL in the Republic of Serbiazs from the courts’ establishment in 1974 through to 1981. In that last year, 27 696 new cases were initiated in the basic CAL in Serbia. Of these, 31% concerned salary, 25% the status of individual workers (i.e., whether they were permanent or temporary, or challenges to a job transfer), 23 % concerned the allocation of housing,*g and 22 % were either worker challenges to disciplinary measures or enterprise efforts to obtain damages from workers for causing losses to the organization. 3o In terms of our indices of court use by individuals, the Yugoslav CAL were much more similar to the West German labor courts than to the East German conflict commissions: in the CAL, over 93 % of the cases were initiated by individual workers, and only 5.2 % by organizations,31 and 115.8 cases were initiated

by individual

workers per 10 000 workers.3*

This comparison

may be

somewhat misleading, because the German courts do not consider the housing questions that make up nearly a quarter of the CAL caseload. If we recalculate without the housing cases, however, the picture remains much the same: 90.9% of the cases were initiated by individuals and 6.7 % by organizations,

and 87.1 individually initiated

cases per 10 000 workers. Overall, plaintiffs’ requests to the CAL were fully or partly granted in approximately 38% of the cases and rejected in 33 % ; about 11 ‘$J were discontinued by plaintiffs, and the rest were disposed of in other ways, e.g. dismissed for lack of jurisdiction, etc.33 When we consider that many of the discontinuations were likely the result of the plaintiff receiving

some satisfaction

of the claim, the success rate of plaintiffs is substantial.

It thus seems that despite the similarity in the rhetoric surrounding the CAL and comrades’ courts, the former are used by individuals to enforce their rights, while the latter are used primarily to discipline individuals. We might ask whether there are specific attributes of the CAL, as opposed to comrades’ courts, which would make the Yugoslav institutions more attractive than their counterparts in the Warsaw Pact countries to individual workers. One possible argument can be discounted immediately. It might be asserted that East Germany has developed socialism further than Yugoslavia, and that the lack of workerinitiated cases in the former country

is due to a lack of conflicts between workers and management. As Inga Markovits has noted,34 such an assertion is contradicted by the high number of management-initiated cases in the conflict commissions. It is clear that worker-management conflicts exist in East Germany, but that there it is the management

that is most likely to initiate legal action.

28. It should be noted that as our statistics are derived from the work of the CAL in only one Republic, they may not be representative of the work of the CAL in the rest of Yugoslavia. Unfortunately, comparable figures for the rest of the country are not at present available. 29. Housing is scarce and expensive in the major Yugoslav cities. The best way to get housing is through one’s work organization, but there are almost always long waiting lists for such social, subsidized housing. to hear This situation of scarcity provokes much litigation in the CAL, which have exclusive jurisdiction challenges to such housing allocations. 30. Figures are from Glasnik &da udruienog rada Srbije 11 uune, 1982) pp. 17-20. 3 1. LOG. cit. 32. There were 2 224 000 workers in Serbia proper in 1981 (S. R. Srbije, Mese~niSta2isli~kiPregred(12/82), p. 40.) 33. Ghnik &da udruhnog mda Srbij 11 (June, 1982) p. 24. 34. Markovits, ‘Law or Order’, op. cit. n. 23, pp. 554-555.

Labor Courts and Workers’ Rights in Yugoslavia

253

We might look instead at what, exactly, the different courts offer to potential litigants, particularly

to individual

workers.

While

comrades’

courts have been hailed in the

Western legal literature as increasing access to justice by reducing the costs imposed by professionalism and the social distance between judges and litigants, the comparison between the CAL and comrades’ courts indicates that these features are not by themselves determinative of court use. There seems little doubt that the comrades’ courts are informal and presumably cheap: they are staffed by lay judges and located within, for example, factories and local political entities so the costs of invoking them are low. In contrast, extensive observation in the CAL in Beograd reveals a quite formal ‘informal’ court: virtually all parties are represented by lawyers, who dominate discussions; 62 % of the judges who head the panels that hear cases have had legal training; almost all of these panels are assisted by a legal ‘secretary’ who ensures that their decisions are in accordance with the relevant statutes and judicial interpretations; these legal materials are treated similarly to regular legal sources in terms of use, publication and scholarly commentary.35 In terms of access to the courts and the other supposed benefits of informal judicial institutions, the pattern should be that the comrades’ courts are more heavily used than the CAL. Since the reverse is true, we must look elsewhere for explanations. We might instead concentrate on the second half of the access equation: access to what? Do the resources that the CAL offer individuals differ from those afforded by the comrades’ courts in a way that would make the Yugoslav institution more attractive to potential plaintiffs? The answer to this question would seem to be yes, because of at least two clear differences in the power and organization of the CAL as opposed to more typical comrades’ courts. The first of these differences is in the remedies and sanctions employed. Comrades’ courts are instruments of social control of deviant behavior: They are meant to adjudicate in instances of improper behavior, and to prevent recurrences by educating the miscreant and by applying ‘social pressures’ on that individual. In contrast, the CAL offer legalistic remedies to individuals: the removal of disciplinary sanctions, reinstatement after improper dismissal, cancellation of an improper housing allocation (which may lead to reassignment to the plaintiff), for example. Bluntly, the CAL can be used by individuals to accomplish their own ends. Substantive legal remedies are useless, however, if the court is not willing to apply them. The second important difference between the CAL and comrades’ courts is important in this regard. While comrades’ courts are located within the enterprise, the CAL are organized on a territoral basis; they are separate bodies with their own offices and staff. Their independence means that the CAL are not subject to the kinds of institutional pressures that are likely to affect courts located within factories and other enterprises. For example, the CAL in Serbia have held that a worker cannot be disciplined for criticizing management. 36 One can imagine that a worker would be unlikely to succeed with such a case in a comrades’ court, as he or she would be in the position of complaining about the factory to factory representatives within the factory. The assertion that the CAL are heavily used by individuals because they offer plaintiffs the hope of gaining specific legal remedies will seem unexceptional to most Western lawyers, but raises problems for socialist theories of law which stress duties as 35. 36.

See Hayden, o,b. cil. n. 11, pp. 312-316. Decision of the CAL of Serbia, No. 5748/82;

Nov. 19, 1982

254

SIWDIES IN COMPARATIVECOMMUNISM

much as or more than rights. These problems can be seen in the Yugoslav context because the very success of the CAL in attracting cases made them a political issue and subject to a ‘reform’ campaign. Consideration of this political maneuver may tell us something about the issues involved in socialist justice in general, and particularly in Yugoslavia.

The Attempt to ‘Reform’ the CAL,

1980-1984

The Yugoslavs see their endeavors at building self-management as a large-scale experiment ,37 and spend a fair amount of energy in monitoring the way that experiment is progressing. Less than four years after the establishment of CAL, their activities were discussed in the Federal Executive Council, and a decision was made to undertake a study of the workings of these courts. The study was apparently conducted by the Federal Secretariat for the Judiciary and the Organization of the Federal Administration, which delivered an Analysis of the Situation and Problems of the SelfManagement Judiciary (hereafter, Analysis)38 to the Federal Executive Council on April 30, 1980. The Analysis considered virtually all aspects of the self-management courts: theoretical and practical legal problems, their work in 1977 and 1978, and specific questions concerning self-management courts.

the organization,

jurisdiction

and procedures

of all of the

The Analysis noted the extremely high percentage of cases brought by individual workers, and that the Trade Union brought ‘a very small number of cases’. It also noted that 94.9% of the cases concerned ‘work relations’. The Analysis interpreted this pattern of disputes to mean that the CAL are ‘special courts for the resolution of disputes [arising] from individual infringements on workers’ rights’ instead of courts which restore disrupted self-management relations between workers, and suggested that some CAL can reduce these individual ‘work disputes’ by working with the Trade Unions to prevent them. It went on to say that this pattern indicates the ‘mistaken’ development of the CAL, because at the time of their inception it was never thought that they would be mainly concerned with individual disputes. Further, for the types of disputes that dominate the present CAL, the Analysis indicated that legally trained judges are needed, to deal with legal questions involving the rights of individual workers. As the original legislation creating the courts envisioned workers as judges, the pattern of a predominance of individual disputes was described as unfortunate.3g The passive role of the trade unions was castigated, particularly insofar as the unions do not protect individual workers (and, by extension, organizations) from improper activities by management and management organs. This section of the Analysis concluded by saying that the pattern of cases in the CAL has both positive and negative meanings. On the positive side, the increase in individual complaints indicates a rise in consciousness among workers of their self-management rights. On the other hand, the 37. See Rusinow, op. 38. Savezni Sekretariat

cit. n. 2. za pravosudje i organizaciju savezne uprave, Analiza o stanju i aktdnimproblemim samoupravnog sudstua. Beograd: Skupstina SFRJ, 1980. 39. Although the Analysis did not mention it, the selection of judges may have been made with an eye towards the need for legal training even in self-management courts. In 1981, 62% of the judges who headed panels in the CAL in Beograd held law degrees. Further, each panel was assisted by a Secretary’, a recent law graduate who ‘briefed’ the panel on cases, drafted opinions, and offered legal advice to untrained judges (on the legalization of the CAL, see Hayden, op cit. n. 11, pp. 313-316). The Analysis noted the presence of these Secretaries (pp. 61-62), b u t with disapproval, saying that they were not envisioned by the statute creating the court.

Labor Courts and Workers’

large number

of individual

cases indicates

self-management. The Analysis ended with conclusions was that the transformation but the reasons for this management

relations,

255

Rights in Yugoslavia

the unsatisfactory

development

and recommendations.

thus far of

The basic conclusion

of the judiciary is taking place more slowly than expected, were seen as the unsatisfactory development of self-

rather than the CAL themselves.

Mention

was made of the fact

that, since lawyers frequently represent both sides, and cases generally concern the rights of individuals, the CAL in some ways have developed to be rather similar to the regular courts. The solution was seen in increasing the preventative character of these courts to forestall individual disputes through the involvement of other social bodies, particularly the Trade Unions. A suggestion was made that some disputes, particularly those involving housing, should be handled by special CAL devoted only to that job.40 The Analysis was not published, but it was discussed by the Federal Executive Council (FEC) on February 3, 1981. On J une 12, 1981, the FEC published conclusions based on the Analysis.41 These conclusions, though clearly based on the Analysis, were much more critical of the CAL than the original document had been. The Analysis had found fault with the current operation of the CAL, and particularly with the overabundance of individual cases. But where the Analysis saw this pattern of cases as evidence that self-management relations had not yet developed satisfactorily, the FEC saw it as evidence that the courts themselves were unsatisfactory. Further, where the writers of the Analysis had noted that the abundance of individual cases had a good side, as it indicated greater consciousness among workers of their rights, this was not mentioned by the FEC. Instead, the FEC stressed those aspects of the Analysis that indicated that the CAL had not developed as originally envisioned. The basic conclusion stated by the FEC was simply that the CAL had developed like regular courts, rather than selfmanagement courts. Following this assessment, the FEC called for a new Federal law on CAL, which the Committee on the Judiciary of the FEC undertook to prepare. The Committee prepared a Proposal for Passage of a Law on Courts of Associated Labor42 which outlined a complete revision of the CAL. While the new proposal had many provisions, the most important of them was that the CAL be placed within BOALs, rather than continuing as independent agencies. The Proposal was presented to the full Committee as being of utmost importance, and it was suggested that it should be enacted as law immediately, without going through the normal parliamentary procedures. However, in what newspaper accounts indicate was a lively session, this suggestion was not accepted.43 The representatives of the Federal Trade Union objected both to the proposal to put the CAL into BOALs, and to the acceleration of normal parliamentary procedures. Over the next several days, a campaign against the proposed new law gained support, and its passage was put off indefinitely. The political struggle over the proposal for a new law on CAL continued for over a year. The proponents of the law kept insisting that the CAL as then constituted were ‘outside of organized labor’ and had to be within BOALs to be truly self-management courts. They prepared a new draft law which kept that provision, which was circulated 40. in the Thus 41. 42. 43.

Again, although the Analysis did not mention it, this approach has already in effect been taken, at least CAL in Beograd, which gives particular panels of judges responsibility for particular kinds of cases. some panels already hear only housing cases, giving in effect a specialized court for those cases. SI. lid SFRJ 32/81, item 334. Predlogm donohjezakona osudovima udruienograda, Skupgtina SFRJ, AS br. 509/l, Beograd, Dec. 1981. Pofitika (Beograd),

Feb. 6, 1984, p. 4.

256

STUDIES IN COMPARATIVE COMMUNISM

for public discussion in September 1982 .% The Trade Union was joined in its opposition to the proposal by the Federal Lawyers Council, which ‘could not find even one good word’ for the draft law,45 and by the Joint Session of Appellate CAL in Yugoslavia, which published a detailed critique of the draft of the new law in May, 1 983.46 The press was solidly against the proposal for putting the CAL into BOALs, and used a folk saying from Serbia’s five hundred years under Turkish rule to compare the proposed new CAL with Muslim kudi justice: kudija te tuti, kadija ti sudi [the kadi accuses you and the kadi judges you14’ The alignment of forces in opposition to the proposed new law is of some interest. The lawyers’ stand was predictable, as the existing CAL handle a great deal of business and are thus very profitable for the lawyers. Similarly, the appellate CAL would have been alarmed at the possibility of a dramatic decrease in their workload if the proposals had been enacted. The Trade Union’s opposition seems less explicable, in view of the lack of use that the Union had made of the existing CAL. However, if the Union has not been going to court very often, it has still been active in aiding workers in resolving disputes within the factory:48 from 1977 to 1981, the Trade Union aided 77 000 workers in defending their rights. 4q As the power to obtain concessions and informal decisions in one’s favor may depend on the credibility of one’s threats to mobilize official adjudicatory bodies, the Union may have been concerned with preserving the basis of its power to work for the enforcement of workers’ rights.50 The arguments advanced by both sides ranged from the polemical to, particularly on the side of the opponents of the new law, the practical. The proponents of putting the CAL into BOALs used ideological and definitional arguments: the CAL were not within organized labor and thus could not be truly self-management courts. They also used the argument that the plethora of cases in the CAL was in itself an unfortunate condition that should be rectified by reforming the courts. This assertion was tied to the greater political theme, frequently heard throughout Yugoslavia in 1982, that there should be greater accountability and responsibility (odgouamost) for economic actions and mismanagement. Proponents of the reform of the CAL said that these courts diluted responsibility because they overturned any disciplinary actions taken against ‘slackers’ (neradnici). However as the press pointed out, 51 there was very little evidence to support the charge that the CAL protect non-working workers: very few disciplinary cases come to the CAL, even fewer succeed, and in any event the judges are careful to follow the mandates of the substantive law. The opponents of the proposed change stressed that the high caseload was a symptom of the misdevelopment of self-management rather than a disease in itself, and that putting the CAL into BOALs might serve mainly to strengthen the ‘technobureaucratic forces and leadership structures’ within organizations, and thus work against true self-

44. Borba (Beograd), Sept. 14, 1982, special section. 45. Politika (Beograd), May 15, 1982, p, 6. 46. Giasnik &da udruienog rada Srbije 13 (June, 1983) pp. 20-25. 47. Beha (Becgrad), Feb. 6, 1982, p. 2; NIIV, April 4, 1982, p. 23; K~munist, Jan. 7, 1983, p. 7. 48. Sharon Zukin, ‘The Representation of Working-Class Interests m Socialist Society: YUgoslav Labor Unions’, Politics and Society 10, no. 3 (1981), p. 281. 49. Borba (Beoarad), Oct. 13, 1982, p. 2. 50. Never;h&s, it is worth reco&ing a joke popular in the Beograd CAL in 1983: “What’s the difference between the Trade Unions and God? - There isn’t a difference: you can ask the one or you can ask the other, but you still won’t get any help.” 51. E.g. B&z (Beograd), ApriI 6, 1983, p. 4.

257

Labor Courts and Workers’ Rights in Yugoslavia

management.52 A writer in the popular weekly NZNsuggested that the proponents of the new law had not given adequate thought to the actual conditions prevailing within organizations,

nor to the good features of the present courts.53 A bitingly satirical piece

in the party organ KomunistS4 repeated

the NZN arguments

and the crack about kadi

justice, and argued strongly against the new law. Finally, opponents made the case that the proposed change would be unwieldy and expensive, considering the large numbers of BOALs

in the country.

Ultimately, it was the opponents of the ‘reform’ who carried the field. A new federal Law on Courts of Associated Labor was enacted in July, 1984,55 but its major effect will likely be to strengthen the existing CAL. The new law does not put the CAL into BOALs, but rather keeps them as independentjudicial institutions, organized on a territorial basis. Further, the new law strengthens the CAL by putting the enforcement powers of the regular courts more firmly behind them. Under the old law, enforcement was often problematical. While Article 10 of that law said that ‘decisions of the courts of associated labor have validity and are executed on the entire territory of Yugoslavia’, the first sentence of that article said that ‘Decisions of the courts of associated labor can be defeated (mogu sepobijati) by legal means in cases and under conditions established by statute.’ The regular courts often refused to execute the judgments of the CAL.56 However, Article 6 of the new law says: (1) that the decisions of the CAL ‘are valid and are executed’ in all of Yugoslavia, (2) that participants in CAL proceedings are obligated to execute the decision of that court, (3) if such a participant does not execute the decision, the regular courts will execute it under the law on administrative procedure; (4) if it is not possible under the new law on administrative procedure for the regular court to execute the decision of the CAL, that decision will be executed by local political bodies. Thus the new law removes the possibility of challenging the decisions of the CAL in the regular courts,57 and gives further specificity to the procedures for gaining execution of CAL decisions. The new Law on Courts of Associated Labor went into effect on 29 July, 1984, and so it is too early to determine what its effect will be in terms of caseloads for the trial CAL. Nevertheless, there is little reason to believe that the number of cases being brought in those courts will decline. Indeed, if enforcement of CAL decisions by regular courts becomes more certain, the CAL may themselves become more attractive to potential plaintiffs, in which c&e the caseload of the basic CAL may even increase. In any event it seems likely that the CAL will remain, in striking contrast with their counterparts in the Warsaw Pact countries, institutions used primarily by individual their rights, rather than as mechanisms for social control. Implications

workers to protect

and Conclusions

The experience of the CAL has implications for several issues in comparative law. First, it indicates that the literature on informal alternatives to courts, which sees informality as increasing access to justice, has missed the mark. As mentioned earlier, that literature has cited the comrades’ courts as inspirational examples of the potential benefits of 52. 53. 54. 55.

&&I (Beograd), Feb. 6, 1982, pp. 2, 4. NIN, April 4, 1983, p. 23. Jan. 7, 1983, p. 7.

Zakon o sudovim udruieno~ rada, SI. list SFRJ br. 38 od 13, jula 1984 s. 56. NIN, May 30, 1982, p. 20.

57. Challenges

may still be mounted

in the Constitutional

Courts,

but this is rarely done

STUDIES IN COMPARATIVECOMMUNISM

258

informal justice. However, examination of who uses the courts indicates that the comrades’ courts, which are informal, lay bodies, are not used by individuals, while the CAL,

which

are informal

alternatives

only

in name,

are heavily

patronized

by

individual workers.58 The attempt to ‘reform’ the CAL points towards the existence of such f6rmal features as judicial independence and the availability of specific forms of legal relief as crucial to the popularity of a court with individual plaintiffs, since without them a court has little to offer. This would seem a banal conclusion, but the point has largely been ignored in the alternatives literature. For example, as mentioned earlier, 6ne of the most vexing problems for advocates of informal courts is that figures on the caselbads of mediation centers and other informal dispute institutions consistently indicate that few people volunteer to use them. But if these institutions are really noncoercive and do not offer any specific forms of relief, what do they offer? At first glance, the history of the CAL seems more encouraging for the theory of socialist law and particularly for the concept of social courts, as it seems to contradict the view that socialist law is inherently concerned only with social control and is hostile to the assertion of individual rights. Yugoslavia, after all, is plainly a Socialist country, and the CAL were justified by reference to good socialist ideals. On further reflection, however, this favorable evidence disappears, because, as the proponents of the reform of the CAL argued, these courts are in actuality not social, or self-management, courts at all. And, as the opponents of the ‘reform’ argued, it is because they are not really social courts-because they are independent-that the CAL are heavily used by ordinary workers. Ironically enough, it is precisely because the ‘reformers’ arguments have made the deviation of the CAL from the ideals of social courts so clear that the objective arguments made by the opponents of the reform are so telling. Thus

the Yugoslav CAL, when compared with their East and West German offer empirical evidence that the ideal of social courts is in fact if courts are not independent, they are unlikely to be used by many

counterparts, contradictory:

individual members of society, though they may be used by the powerful few to control the many. Of course, the traditional approach of socialist theory is to remove the contradiction by defining it away: the working class and its agents can, by definition, do no wrong, and individual ‘rights’ are undesirable because they can be used to obstruct the attainment of communal goals. But the sophistry of this reasoning, long ago exposed as simply covering up the existence of a ‘new class’ of autocratic rulers, is recognized by the Yugoslavs in their opposition to the enhancement of ‘technobureaucratic forces’. The new class argument would seem so obvious and well known that it does not need fuither discussion, but it seems that it can be either easily forgotten or conveniently not noticed. At the moment, for example, one of the most noticeable and influential elements in American legal scholarship is the Critical Legal Studies movement (CLS), a self-proclaimed radical leftist assault on traditional legal thought.5g CLS scholars have resurrected the argument that individual rights impede social justice by limiting governmental actions aimed at achieving that goal. 6oThis problem is, of course, an old 58. See Hayden, op. cit. n. 11, pp. 316-320. 59. Programatic statements on the CLS movement, and examples of CLS analysis, can be found in David Kairys, ed., The Politics oflaw: A Progressive Critique (New York: Pantheon, 1982) and in a Special Issue: Critical Legal Studies Symposium, Stanford Law Review 36, nos. 1 and 2 (January, 1984). See also Roberto Unger, ‘The Critical Legal Studies Movement’, Harvard Law Review 96, no. 3 Uanuary, 1983), p. 561. 60. See, e.g., MarkTushnet, ‘An Essay on Rights’, Te.wsLawReview662,no. 8(May, 1984),p. 1363; Karl Klare, ‘Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law’, Industrial Rclafionr Law Journal 4, no. 3 (Summer, 1981), p. 450.

Labor Courts and Workers’ Rights in Yugoslavia

259

one for the left,61 but recent opinion on the left outside of CLS seems to be on the side of ‘rights’ or ‘the rule of law’ being beneficial,

and necessary

for true democracy.62

One

suspects that on the CLS side, the righteousness of the cause is taken to justify the suppression of rights. Thus, one CLS writer identifies his criticism of individual rights as that of ‘the party of humanity’,63 while another asserts that the goal of the CLS movement is the creation of a new form of democracy involving ‘the systematic remaking of all direct personal relations . . . through their progressive emancipation from a background plan of social division and hierarchy’.‘j4 Surely no one could legitimately oppose such a party’s efforts to attain such a goal, and so the oppression of those who would try to do so is justified. But is ‘the party of humanity’ likely to be any less of a new class of oppressors than, say, the Party of God, or certain other selfrighteous parties? Finally, we may consider the possible implications of the history of the CAL for the development of Yugoslav self-management socialism. Again the situation seems contradictory. Self-management courts are in theory essential to the establishment of true self-management socialism, and to say that the CAL are effective only because they are not really different from the regular courts thus seems to contradict the basic tenets of self-management. Yet perhaps the contradiction is more apparent than real. To the Yugoslavs, the main failing of Soviet-style communism has been its degeneration into centralized bureaucratic authoritarianism; it is precisely this failing that selfmanagement is meant to overcome. In Yugoslav theory, one of the ways of overcoming the ‘technobureaucratic forces’ that lead to such an overcentralized system has been through an emphasis on constitutionality and legality, including an active Constitutional Court and lower courts that are fairly independent of political pressure.65 The major argument of the critics of the ‘reform’ of the CAL was that if these courts were not independent, they would not be used by anyone except the members of the ‘technobureaucratic’ element within a firm. Thus, the critics can be read as saying that the ‘reform’ would really be counter to true self-management. The history of Yugoslav politics over the past twenty years has been one of uneasy compromise between the ideals of truly decentralized, democratic government and the ideology of the one-party state .@ What in fact makes Yugoslavia so interesting has been the willingness of the party to both recognize the tensions inherent in this dichotomy and to attempt, through the idea of self-management, to overcome it. The strengthening of the CAL in spite of their variation from the established concepts of self-management

61. See Anthony Chase, ‘The Left on Rights: An Introduction’, Texas Law Reuiew 62, no. 8 (May, 1984), p. 1541; Ed Sparer, ‘Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly StanfDI-dLaw Review 36, nos. 1 and 2 (January, 1984). Critique of the Critical Legal Studies Movement’, 62. See, e.g., E. P. Thompson, whi& and Hunters (London: Allen Lane, 1975); Paul Hirst, ‘Law, in P. Carlen and M. Collison, eds., Radical Issues in Criminology (Oxford: Martin Socialism and Rights’, Robertson, 1980); i&m, ‘Socialism, Pluralism and Law’, ZntmationalJournal oflhe Sociology oflaw, 13, no. 2 (May, 1985), p. 173. A similar conclusion has been reached by a major Yugoslav sociologist of law: Peter Jambrek, ‘The Economic Base of Legality: The Case of Yugoslavia’, InternationalsJournal of the Sociology ofLaw 13, no. 2 (May 1985), p. 191. 63. Tushnet, op. cit. n. 60, p. 1364ff. 64. Unger, op cit. n. 59, p. 587. 65. Winston Fisk, ‘A Communist Rech&staat?-The Case of Yugoslav Constitutionalism’, Gwernmenl and Opposition 5, no. 1 (Winter, 1970), p. 41; idem, ‘The Constitutionalism Movement in Yugoslavia: a Preliminary Survey’, Slavic Review 30, no. 2, uune, 1971), p. 277. 66. April Carter, Democratic Reform in Yugoslauia: The Chmging Role of the Parv (London: Frances Pinter, 1981).

STUDIES IN COMPARATIVECOMMUNISM

260

courts may be an indication theory in light of practice. For

all

three

of the continued

literatures-alternatives

willingness to

courts,

of the Yugoslavs socialist

law

to modify and

self-

management-the importance of the CAL lies precisely in their failure to match theoretical expectations. As a commentator in the Yugoslav party organ Komuni.d7 noted in regard to the proposal to put the CAL into BOALs, ‘perhaps an idea is exceptionally good, but if we wish to implement it, failure to consider reality will most frequently lead, in actuality, to that idea giving birth to its own total contradiction, to absurdity’. This is indeed a practical, pragmatic observation, but one with important implications for ideology. That the Yugoslavs are willing to recognize the contradictions offers hope for the continued adaptability of their society. One can only wish that other theorists would be so pragmatic.

67. Jan. 7, 1983. p. 5