Belgian social law and its journals: a reflected history

Résumé

Résumé
Par l’analyse du développement du droit social contemporain, Bruno Debaenst met en évidence les liens nourrissant l’émergence d’un champ spécifique du droit et de ses revues spécialisées. Ces balises soulignent les interactions entre acteurs pour occuper un espace autonome dans la culture juridique en construction. Progressivement, les deux piliers fondateurs, le droit du travail et le droit de la sécurité sociale, s’autonomisent. Les revues deviennent distinctes et spécialisées. Ainsi, depuis la fin du dix-neuvième siècle, l’auteur retrace les dénominations multiples qui, jusqu’à la Seconde Guerre mondiale, sont animées principalement par les praticiens, avocats et magistrats. Par l’entrée dans la formation universitaire des juristes, ces revues retiennent désormais l’attention des professeurs des universités de Liège, Louvain et Bruxelles. Ainsi, cette étude démontre comment les revues juridiques participent à la définition de la culture juridique bien plus qu’elles en sont le miroir.

Abstract

Summary
Through the analysis of the emergence of contemporary social law, Bruno Debaenst stresses the multiple links resulting from the creation of a new field in law and its specialized journals. These milestones underline how actors interact to define and manage an autonomous space in the legal culture in the making. Progressively, the two founding pillars of social law, labour law and social security law emancipated. Thus, journals follow a similar path to become distinct and specialized. Since the end of the nineteenth century, as the author lists the multiple titles, legal practitioners, lawyers and magistrates animate the journals until the Second World War. With the integration of social law in the legal curriculum, these journals received attention of Liège, Louvain and Brussels universities professors. In a way, this analysis documents how legal journals contribute to the definition of legal culture, beyond reflecting it.

Table des matières

1Belgian social law and its journals : a reflected history

Introduction

2Labour law (the legal organisation of work relations) and social security law (the legal answer to the so-called social risks), together denominated as ‘social law’, have existed throughout time1. Modern social law, however, is, without any discussion, a direct side effect of industrialisation. Its multiple origins can be dated back to the end of the nineteenth century.

3The most visible origin of modern Belgian social law is the so-called ‘social’ legislation. There is a general consensus among scholars that this legislation was triggered by the bloodily repressed industrial uprising of 18862. It provoked the installation of a parliamentary labour commission to investigate the labour and living conditions of Belgian workers3. The 1886 Labour Commission made a number of recommendations, which led to several protective acts4, such as the 1889 Woman and Child Labour Act5.Some scholars, such as Jean-Pierre Nandrin, consider this legislation to be old-fashioned liberal legislation, as it was only aimed at limiting the abuses, while leaving the unlimited authority of the employer to negotiate the work contract intact6. More importantly, this early ‘social’ legislation had an eye-opening effect. It broke down a mental barrier and prepared the way for more fundamental legislation later on, such as the 1903 Workplace Accident Insurance Act. Jo Deferme, who has studied the rise of social legislation in Belgium, called this a transition from atomism (in the sense of a liberal, individual orientated approach) to holism (in the sense of a social, societal orientated approach)7.

4Another direct consequence of the recommendations of the 1886 Labour Commission was the introduction of specific labour regulations in 1894, to protect labourers against workplace accidents and bad hygienic working conditions8. Simultaneously, a new inspection service was installed. The next year, in 1895, a new Ministry of Industry and Labour was established9. Soon, this administration engaged in a burst of activity, contributing to the development of social law, as safety at work is an integral part of labour law.

5A third source of (modern) Belgian social law can be found in the activities of the Belgian courts and tribunals10. From the 1870s on, more and more victims of workplace accidents (or their relatives) went to court to claim damages from their employers, based on articles 1382-1386 of the civil code (extra-contractual liability law)11. Although only a small number of these lawsuits were successful, a substantial new branch of liability law was established. It was the direct incentive for the 1903 Workplace Accident Insurance Act, which replaced the existing liability practice with a generalisation of insurance12. The 1903 Act led to a new boost in regulation, case law and doctrine, lifting this aspect of social law to unseen heights13.

6A fourth source of modern social law can be found in the industrial courts (conseils de prud’hommes, werkrechtersraden)14. In origin, these instances, which dealt with a broad diversity of labour-related conflicts15, were nothing more than arbitration tribunals for the world of industry, as the bulk of cases were amicably settled. By the end of the century, however, things started changing. The disputes became more complex and juridical, as labour regulation became more technical. In 1900, for instance, a new Labour Contract Act was enacted, replacing local custom law with national legislation16. This growing complexity led to the formal introduction of jurists in 1910, fundamentally transforming the character of the industrial courts and increasing the importance of the industrial courts’ case law as a source of modern labour law17.

7Interestingly, these multiple origins of modern social law can be traced in the legal periodicals of that time, such as La Belgique Judiciaire, the Pasicrisie or the Journal des Tribunaux. More interesting, however, is the emergence of new, specific journals, dealing with one or more aspects of modern social law. In this contribution, I will demonstrate that the genesis of Belgian social law is reflected in the emergence and transformation of these social law journals, and vice versa, that the history of these social law journals sheds new light on the development of social law, as a separate branch of law.

2. The first reviews dealing with social law

8The divergence in the origins of modern social law reflects a heterogeneous spectrum of new periodicals. One group, which can be mentioned, are the reviews that have been published by the new Ministry of Industry and Labour18, such as the Arbeidsblad/Revue du travail (1896) and the Annuaire de la legislation du travail (1897). These journals contained all kinds of information related to modern social law, such as social legislation, case law, ministerial instructions, etc. They served mainly an administrative goal, i.e., informing all of the possible actors involved.

9The enormous increase in government intrusion in the world of industry contributed to the emergence of a new branch of law at the end of the nineteenth century on the crossroads of law and industry, which is generally referred to as industrial law. This industrial law included, as the name suggests, purely industrial matters, such as patents or expropriation, but consisted mostly of what we would describe today as social law matters. Interestingly, in 1898, three specialised legal journals were erected separately from each other to deal with industrial law : the Revue pratique et juridique des accidents du travail (1898-1899)19, the Revue pratique du droit industriel (1898-1919)20 and the Revue des questions de droit industriel (1898-1942). As the latter was the most successful, both in terms of size and duration, I will concentrate on it in discussing these kinds of journals.

10Jules Smeysters, a lawyer at the Charleroi bar founded the Revue des questions de droit industriel (hereinafter Revue). In the first issue, its mission was stated. Questions of industrial law had become more and more important, and the extension of industry had caused an increase in legal problems. Also, the introduction of numerous labour laws and their application led to many discussions. Eventually, the courts were flooded by workplace accident cases. This explained the necessity of a journal specialising in industrial law, which was aimed at both industrialists and at lawyers dealing with industrial law. It sought to be a practical aid for daily use. Its editorial board gathering nine out of ten members who were practicing lawyers, and its content, which consisted of case law and accessible articles on diverse industrial topics, reflected it.

11Apparently, it filled a gap in the market : it was quite successful, with a growing number of adherents each year. Also, it followed the latest developments within the field of industrial/social law. For instance, in 1903, it changed its title to Revue des accidents du travail et des questions de droit industriel. With the addition of workplace accidents, the editorial board wanted to stress the importance of the new 1903 Workplace Accident Insurance Act and the fact that it would pay the necessary attention to this new field of law. After all, the 1903 Act reversed the liability principles and installed a fundamentally new regime with an enormous impact on the victims of workplace accidents. For many, including the famous Brussels lawyer Edmond Picard, this 1903 Act was nothing less than the emanation of a new law (“droit nouveau”)21.

12With the unstoppable increase in industrial law, the editorial board was forced to make some other changes. First, the increase of the number of industrial lawsuits made it practically impossible to publish all judgements22. Therefore, the Revue would only publish the most interesting cases. The others would be mentioned in overviews of case law. Jules Destrée, the famous socialist politician and lawyer at the Charleroi bar, would summarise the cases on damages. Albert Capitaine, a lawyer at the Liege bar, would discuss intellectual property law cases. Finally, Maurice Demeur would give an overview of the case law on accident liability law and on the cases based on the 1903 Act. Soon, Demeur would become the mainstay of the Revue. In 1904, he became the secretary of the editorial board, and in 1905, he was named editor-in-chief, along with its founder, Jules Smeysters. In 1907, he became the only editor-in-chief, a function he would continue to exercise until his death in 1939. In the pre-War period, Demeur was incredibly productive : He wrote an astonishing 1212 pages in the Revue. The bulk consisted of case law overviews, but he also wrote a considerable number of legal doctrine contributions. The First World War suspended the publication, but in 1920, the Revue reappeared. Unfortunately, it would never totally recover from the blow it had received during the German occupation. Notably, it would only reach two thirds of its pre-war size. The quality of its content also became poorer, with a predominance of case law. Nevertheless, the Revue would lag on until 1942, when it finally disappeared.

13One explanation for the post-war decline of the Revue can be found in the Bulletin des assurances. This journal, founded in 1921, was published by the Belgian Association of Insurance Companies (Fédération des compagnies d’assurances, founded in 1920). The aforementioned Maurice Demeur was one of the five members of the editorial board, along with four directors of insurance companies. Demeur no longer published his overview of workplace insurance cases in the Revue, as was the case before the war, but instead, in the Bulletin23. In the first years of its existence, the Bulletin was rather limited in size and design. During the general assembly of the Fédération of 26 November 1926, the secretary general wanted to make the Bulletin the “spiritual link” between Belgian insurers, which implied the cooperation of its members24. His plea seemed to have been successful, as the Bulletin soon became more substantial : It grew from 360 pages in 1926 to 1344 pages in 192825. Its content also improved, with numerous doctrinal contributions. During the following years, the Bulletin would continue to grow26. Therefore, in 1940, the editorial board could claim that their journal had become the most important journal on insurance and liability, and perhaps, even the most important legal review in the country27. Of course, it was not the only journal specialising in insurance matters. In 1927, Larcier started the Revue Générale des Assurances et des Responsabilités, which has continued to exist up until today. Other successful insurance journals at that time were Le Pélican, the Organe propagateur des assurances (1879-1939) and La chronique des assurances et du commerce (1895-1951)28. All of these journals specialised in insurance and discussed workplace accident insurance, as it made up a substantial part of the insurance business. In this way, the insurance journals can be considered to be a third group of journals, which, at least partly, specialised in social law.

14A fourth type of legal journal which can be considered as an early “social law review” was the Jurisprudence du travail : Revue des Conseils de prud’hommes et de législation sociale, which was founded on the first of May 1914. Its founder was Louis-Théodore Léger, a lawyer at the Brussels bar and a legal assessor in the industrial tribunal of Brussels. The function of legal assessor was introduced in 1910, when a new act prescribed the presence of a jurist in each of the industrial tribunals29. This created a new group of jurists who were professionally active in these specific tribunals. The increasing complexity of industrial tribunal matters and a growing feeling of identity probably explain the desire for a specialised review. The new journal was broadly supported by the industrial courts. Notably, five (out of seven) presidents of industrial tribunals of appeal and ten industrial tribunal presidents supported the initiative. Moreover, when looking at the long list of co-operators and correspondents, one can count the whopping number of forty-three people who were involved in the industrial tribunals (clerks, assessors and vice-presidents) from thirty-one industrial tribunals throughout Belgium. Not surprisingly, the new journal had a preponderance of industrial tribunal case law, jurisprudence and legislation.

15Unfortunately, after a few issues, the First World War broke out. The journal disappeared until 1929, when it was resurrected by Léger as the Jurisprudence du louage d’ouvrage (Revue des Conseils de prud’hommes)/Rechtspraak omtrent werk- en dienstverhuring (Tijdschrift van de werkrechtersraden). This new journal was the direct successor of Jurisprudence du travail. It was again a journal for and by jurists who were active in the industrial tribunals30. The link between the journal and the industrial tribunal jurists became even closer when, in 1933, an association of legal assessors was established, which used the Jurisprudence du louage d’ouvrage as its mouthpiece31.

3. From reviews dealing with social law to the first social law review

16The aforementioned reviews have a number of elements in common. First, they were all founded during a period when social law was developing rapidly, making it necessary to discuss the latest developments in this new branch of law. This explains why all of the studied journals contain huge chunks of social law. More important, however, although all of them dealt with social law, none of them could be considered as pure social law reviews. The explanation is simple : they all had different angles, which did not coincide with the angle of social law.

17First, the administrative reviews had an administrative purpose. They were aimed at spreading information from the new Ministry of Industry and Labour. An important part of the new administrative reviews was reserved to matters belonging to the field of social law, but not all. The same can be said about the industrial law journals, which were aimed at a diverse audience of industrialists and lawyers who specialised in this specific matter. Social law was an integral and important part of industrial law, but industrial law was broader, as it included all kinds of industrial matters. The same was true for the insurance journals, which not only dealt with social insurance, but with all kinds of insurance. Even the industrial tribunal journals cannot be considered to be “social law reviews” in the strict sense of the word. Notably, at that time, industrial tribunals did not deal exclusively with social law matters. They also settled other affairs, such as conflicts about patents. Finally, huge parts of what is today considered social law escaped their competence. Two examples can illustrate this. Up to 1910, only workers in the strict sense could bring their conflicts to the tribunal. Clerks or agricultural workers, for instance, were excluded32. More important, until the reform of the judicial code of 1967, the important matter of workplace accident insurance disputes belonged within the competence of justices of the peace, not industrial tribunals.

18For the first social law reviews, one had to wait until after the Second World War. In 1948, the Jurisprudence de louage d’ouvrage/Rechtspraak omtrent werk- en dienstverhuring was renamed the Revue de droit social et des tribunaux du travail/Tijdschrift voor sociaal recht en van de arbeidsgerechten. With this name change, the journal wanted to expand its scope to everything dealing with social law and the labour courts33. The new label was not accidental for two reasons.

19First, the term “labour court” (tribunaux du travail – arbeidsgerechten) was not neutral. After all, at that time, the correct name of these judicial instances was still “industrial tribunals” (conseils de prud’hommes – werkrechtersraden)34 .To understand the true importance of this symbolic action, one has to look at the history of these instances. In the nineteenth century, the industrial tribunals were more arbitration committees than courts35. Accordingly, the judges were not professional judges, but laymen-delegates from the world of industry. They had a specific competence and only dealt with small disputes directly linked with the world of industry36. Conciliation was a central element in their operation, and only a small part of the disputes had to be judged37. Most important, by their contemporaries, these instances were not considered to be real courts, but to be family instances, where law only played a small role – equity was more important38. This attitude explains the decision in 1903 to assign workplace accident insurance disputes to justices of the peace and not to industrial tribunals39.

20In the twentieth century, all of this started to change. Together with the development of social law, the industrial tribunals evolved, more and more, in the direction of real courts. As previously mentioned, in 1910, each tribunal had to have one jurist40. In 1926, this jurist received, inter alia, the competence to draft judgements41. More generally, the disputes that were brought before the tribunals became more and more technical, as social legislation became more elaborate and technical. Slowly, the legal assessors of the industrial tribunals started to become emancipated, for example, with the founding of their own journal in 1914/1929 and their own association in 1933. In 1946, Louis-Théodore Léger had already pleaded for the renaming of the industrial tribunals as labour courts42. In conclusion, the name change in 1948 was a clear statement in the emancipation battle of the industrial tribunal jurists. In 1950, both editors-in-chief expressed the wish for all legal assessors to be promoted to presidents of the labour courts, with the lay judges as assessors. In the following years, the Revue de droit social et des tribunaux du travail would continue to follow the matter, until all of their wishes were granted with the judicial reforms of 1967.

21The second element in the name change involved social law. It was the first time that a journal had explicitly made reference to this term in its title. In a note of the direction, this decision was explained43. The editorial board first mentioned the undeniable and growing importance of social security and labour law. In order to follow their development, the journal would publish legal studies and appropriate documentation. It would develop a number of rubrics, such as doctrinal contributions, case law of the labour courts with notes and references, analyses and summaries of social legislation, an overview of foreign social law and a bibliography of books and article contributions.

22This was no coincidence : After the Second World War, social law, as a scientific branch of law, came to fruition, thanks to the development of social security (one can mention the important Decree of 28 December 1944 on the social security of labourers) and the increasing academic attention to social law. In 1948, for example, the University of Liège founded a Centre interfacultaire du Travail44. In 1951, at the University of Louvain, an Institut supérieur du travail was founded45. The next year, in Brussels, an Interuniversitair Instituut voor social recht was established46. This Institute gathered all Belgian academic specialists in the field of social law and promoted scientific research on social law. On 22 November 1952, it organised an inter-university conference on social law for the first time47. It proved to be successful, and the following years, the initiative was repeated48. Interestingly, the Revue du droit social et des tribunaux du travail reported extensively on the conferences, publishing the lectures and observations made by the participants.

23The man who personified the new direction of the Revue was co-editor-in-chief Raymond Geysen. In many ways, he was the right man at the right place at the right moment49. On the one hand, he was active in the industrial tribunals. In 1945, he was the legal assessor of the industrial tribunal of Antwerp, and from 1959, he was active in the industrial tribunal of appeal in the same city. On the other hand, Geysen also had numerous contacts in the academic world. From 1946 to 1949, he was an assistant, later a member of the Instituut voor economisch en sociaal onderzoek at the University in Louvain. Starting in 1962, he taught at that university. He was also one of the founding members of the previously mentioned Interuniversitair Instituut voor sociaal recht, of which he became the first secretary in 1952. Geysen was also an authority in the field of social law, thanks to his numerous publications on social law50, including his case law summaries51 and his contributions in Les Novelles52.

24Without any doubt, Geysen is the man who pushed the Revue in the direction of social law. This became even more obvious after the death of its founder, Louis-Théodore Léger, in 1961. The next year, the review dropped the addition of et des tribunaux du travail/en van de arbeidsgerechten, adopting its current name (Revue du droit social/Tijdschrift voor sociaal recht). Again, this was a symbolic deed, as it illustrated that the Revue was growing away from its origins in the industrial tribunals towards a more general approach to social law. In the following decades, Geysen dominated the Revue, until he was succeeded by Walter Reynders in 1988.

25A few years later, in 1994, the Revue changed its publisher from Larcier to Die Keure. It also drastically transformed its content and became a real professors review. In the first issue, the new editorial board explained that it wanted to profile itself as a doctrinal review. It would no longer discuss case law and simple doctrinal comments. After all, there were enough other social law reviews, which could do that. Indeed, at that time, the Revue was no longer the only review specialising in social law. One can mention, for example, the Revue belge de sécurité sociale/Belgisch Tijdschrift voor Sociale Zekerheid, which was founded in 1959 by the new autonomous Ministry of Social Precaution53 or the Journal des Tribunaux du Travail, which was launched in 1970, together with the introduction of the new labour courts. From this perspective, the Journal des Tribunaux du Travail is much more the moral descendant of the Jurisprudence du travail than the Revue du droit social/Tijdschrift voor sociaal recht, its direct successor.

4. Conclusion : a reflected history

26The history of social law, as a new branch of law, is obviously entangled with the history of its reviews. In fact, one can speak of a reflected history. In the first decades, roughly from 1886 to the Second World War, social law was a diverse ensemble without much consistency. There was the new social legislation and its monitoring administration. There were the industrial tribunals, originally not much more than arbitration commissions for the world of labour, but in full transition towards real labour courts. There was the dynamic workplace accident litigation, first based on liability rules, and later, organised through insurance. The heterogeneity of social law at that time was reflected in the legal reviews, of which none specialised in social law as such, but instead, in industrial law, insurance law, etc., and in this way, they contained huge chunks of what is now considered to be social law.

27It was only after the Second World War that the first real social law reviews came into existence, through transformation (as was the case with the industrial tribunal review) or through being newly founded (as was the case with the Revue belge de sécurité sociale/Belgisch Tijdschrift voor Sociale Zekerheid, Journals des tribunaux du travail). This reflected the post-war development of social law as a separate branch of law, with its own branch of academic study in the universities (institutions, chairs, study programs, conferences, etc.) and, from 1970 on, its own labour courts. By the 1990s, this branch of law had become so specialised that one journal could even afford to concentrate only on doctrinal contributions on social law by professional academics.

28The (multiple) origins of modern social law are reflected in the general legal reviews of the time and in the new, specialised journals that have popped up in their wake. Interestingly, in the first phase, none of these journals concentrated on social law as such. Instead, they focused on industrial law, insurance, social legislation, etc. The first proper social law journals only appeared after the Second World War. At that time, social law finally reached maturity, with its own academic disciplines and its own labour courts, which dealt exclusively with this branch of law. This way, the development of social law is reflected in the evolution of legal reviews.

29This case study illustrates the importance of including the study of legal journals in the study of the genesis and development of new branches of law. Vice versa, it shows the necessity to use the general development of law as a contextual explanatory for the emergence of new legal journals. After all, both are intertwined, as the case of social law and its journals demonstrates.

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