Latin American Legal Studies

Abstract

In this article, a new philosophical-normative framework is presented for redefining the principle of labor protection, which, faced with the paradoxical relations between neoliberalism and labor law, urges replacing the passive, abstract and obedient concept of “subject of rights”, with an active, immanent and creative concept such as that of “legal power” to define the worker. Thus, the main thesis is to legally justify that the worker be able to create rights under his mode of existence. In the first section, an examination of the doctrinal principle of labor protection will be carried out through a genealogical understanding of the neoliberal phenomenon, in order to point out a coalescence between the two. Secondly, we will attempt to offer a new legal conception to define the worker, leading to a regulative ideal of the power to create rights as a way out of “the neoliberal”. In our third section, we will offer an account of certain normative and philosophical guidelines so that the current principle of protection can ensure creation at work through “rights of creation”. In our fourth section, an “institutional” definition of “company” will be outlined, in which worker and employer must have equal power to create norms. In the last section, we will argue for the legal necessity of creation as an essential element of labor protection against neoliberal advances.