Labour Law in a Period in which Law Loosens its Ties with the Nation States: Towards a New European Legal Realism?

In this essay, I discuss how Danish labour law is responding to the ongoing changes in the role of the Danish state in connection with the europeanisation and globalization that has been occurring since Denmark’s membership of the EC/EC as of 1 January 1973. I look in part at a specific area of substantive law – the changes taking place in Danish labour in connection with the integration of EU law and international labour law into Danish labour law - and in part at the relationship between law and state at a more general level. I use legal sources on Danish and EU labour law as examples to illustrate the general question whether time has come to choose a new definition of the concept of law. I also look at the development of a common European doctrine of the sources of law in the EU which is occurring in connection with the integration of EU law and public international law into national law in the Member states of the European Union.
Under the heading ’The Identity of Law and State’ Kelsen stated in Reine Rechtslehre from 19341 that the state is a coercive order which is identical with the legal system. Every state is a legal system but all legal systems are not states. As Kelsen expressed it: When the legal system has achieved a certain degree of centralisation, it is characterised as a state. Primitive law has a pre-state form. Public international law and EU law are also not states. The view expressed by Kelsen is a classic statement of the relationship between law and state as seen by legal positivism and legal realism. The establishment of nation states in Europe during the 19th and 20th century was accompanied by a development of labour law as a specific legal discipline.