Labor Relations Between Law and Policy

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Within private legal circles, labor law is generally considered as part of policy-oriented civil law—a specialized branch incorporating policy-driven adjustments beyond pure legal considerations. From a public legal perspective, most components of labor law, ranging from labor market promotion law, labor inspection law, and even collective contract law, are predominantly governed by public power, positioning labor law within departmental executive law. Social jurists often view labor law as a “third legal domain” that comprehensively uses both public and private law methods to adjust labor relations. Although in recent years, some social legalists have argued that it is a special branch of private law, discussions premised on acknowledging the distinctiveness of labor law are ongoing.

The legal community is currently engaged in heated debates, with topics shifting between the extent to which public power should intervene in labor relations of a private law nature, how private law methods can ensure the market plays a foundational role in allocating workforce resources, and how the concepts for adjusting labor-capital relationships should deviate from private autonomy while safeguarding societal cohesion. Scholars, consciously or unconsciously, participate in this academic “positioning,” forming distinct schools of thought within labor law studies and exerting subtle influence on China’s labor-related rule of law.

Labor Relations Between Law and Policy, by Yan Tian, an associate professor from Peking University Law School, argues that rather than being situated within or constrained by public or private law regulatory methods, labor law navigates the space between law and policy. Scholars should focus on the division of roles between legal principles and public policies, namely which cases interpret and apply to existing law, when legal principles should drive legislation, and when it is necessary to put aside legal thinking in favor of policy thinking.

Each significant shift in labor law is accompanied by intense academic debate. The relationship between law and policy has always been a central issue, and this focus becomes particularly clear when viewed through a historical lens. When commenting on the structural system of social insurance, German legal historian Michael Stolleis (1941–2021) believed that the contemporary labor law “system”  is an arrangement influenced by cultural, political, and legal factors throughout history. It is not an artificially created legislative system that can transcend social reality; rather it is a legal edifice, built brick by brick over many years of practice to address social problems. This accounts for why it is difficult to identify much systematic logic within it. Many inexplicable phenomena can only be understood within their special historical contexts. Scholars from home and abroad share similar views about the universality of law as a human institutional carrier.

Lou Yu is a professor from the Civil, Commercial and Economic Law School at China University of Political Science and Law.

Edited by YANG LANLAN