Contextualist
Labour Law
Only
since the early 1970s has labour law emerged as a fully separate legal
category. Before that, its field of operation was subsumed within the
general laws of contract and tort and it was typically depicted as contract
and tort with a boilersuit on. Since its emergence it has become one of
the best examples of'contextualist' legal study (see Hunt in this chapter).
In
even the most Impenetrable of 'black-letter' law degrees, labour law courses
promise consideration of the law alongside the 'realities' of Industrial
relations and collective bargaining, with much cross-referencing between
the law and the work of specialists in industrial relations, industrial
sociology, labour history and so on. This is, in a sense, unsurprising,
for so much of labour law is the direct product of state policy and state
legislation that it simply cannot display the same level of apparent autonomy
that characterises traditional common law subjects.
Measured
against the mind-numbing backwardness of many law courses, this engagement
with law's social context is progressive, However, the depth of analysis
that it offers is limited by its essentially social democratic perspective
on the world; it's a partial, rather than a total, critique (see Hunt
in this chapter). This is to be expected, for the whole terrain of the
subject has been mapped out by social democrats. There can be no other
area which since its inception has been so colonised by Labour Party sympathisers.
Academic labour lawyers-have played an important role in the formulation
of Labour Party policy and have written extensively for Its think-tank,
the Fabian Society. The doyen of labour lawyers, Sir Otto Kahn-Freund
QC, had a social democratic pedigree stretching back to his editing of
the English translation of Karl Renner's The Institutions of Private Law
and their Social Functions (Renner, 1949). Inevitably, the political worldview
of these originators and leading figures features in the organisation
of the subject. It is not a matter of chance that books and courses on
labour law are divided into individual and collective labour law; that
central importance is attributed to collective bargaining and agreements;
that the contract of employment is almost universally derided as a legal
fiction; or that the law of strikes is judged by reference to its ability
to arbitrate the interests of capital and labour (Kahn-Freund, 1972).
These organisational principles represent a view which sees a qualitative
difference between the individual and the collective; which sees trade
union organisation as a countervailing power to organised capital; which
preaches that a key to the regulation of the command power of the employer
lies in casting off the mask of apparent reciprocity.
In
essence, contextualist labour law focuses on the relevance of law and
legal practices to the needs of those involved, especially workers. Where
there is a perceived lack of correspondence between legal rules and practice
and identified needs, normative and institutional changes are proposed.
Certain fundamental assumptions, however, are always left unquestioned.
This is the case even though conflict theories of industrial relations
have come to be preferred to unitary theories. Wage-labour (that is, selling
yourself for a wage) and the law and the state as modes of regulation
are assumed to be natural and inevitable features of human existence.
The capital-labour relationship is treated as natural and the task is
defined simply as its institutional regulation.
Even
the Thatcher decade, which, with its heightened attacks on workers and
workers' organisations, should have raised questions about these assumptions,
has had little or no impact. The response of traditional labour lawyers
has essentially been to continue as before. Some have gone on producing
proposals for a new system of labour law and the replacement of the contract
of employment by some new status agreement, all of course, on the assumption
of the eventual return of a Labour government (Hepple, 1986; Wedderburn,
1987). Others have sought to outflank the Thatcher government by enthusiastically
supporting the Europeanisation of labour law and/or seeking to involve
the courts in the judicial review of the formerly closed space of the
private workplace (Bercusson, 1990; Ewing Sr Grubb, 1987). A number have
simply fallen silent:' Is labour law dead?' asks one academic (Ewing,
1988).
Critical
Labour Law
A
purely contextualist labour law cannot, therefore, be sufficient for the
critical lawyer. Using the perspectives of historical materialism (see
Fine & Picciotto in this book; Grigg-Spall, Ireland Sr Kelly in this
chapter), a genuinely critical approach can be developed, enabling the
basic concepts of labour law to be examined. This method, as Derek Sayer
says, 'reasons from the forms in which economic phenomena present themselves
on the surface of society to the material network of essential relations
peculiar to the mode of production in question which explain why the phenomena
should take such forms' (Sayer, 1979, p. 17). Such a 'transcendental analytic'
enables us not only to grasp that exploitation and class struggle between
wage-labour and capital ate the essential relations underlying the contract
of employment, but also to explain how its Present legal form serves to
obscure those relations.
Historically,
the legal form taken by wage-labour has undergone considerable change.
Up to the mid-nineteenth century it was legally conceptualised in terms
of master and servant. As such, it directly reflected and expressed class
division, subordination and exploitation. Only from the later nineteenth
century did wage-labour come to be legally conceptualised In contractual
terms; as a contract between formal equals. This legal form Is still dominant
and the employment legislation of recent years, has re-emphasised the
contractual conceptions. The contract of employment remains, therefore,
the central category of labour law.
It
is characterised by three principal elements: exchange, free will and
equivalence. Wages exchange for labour; agreement determines the mutual
relations; the relation of formal equality is established by the equivalence
of the commodities to be exchanged - wages for labour. Its content belies
this contractual form. First, close examination of wage-labour reveals
that there is no exchange at all (and certainly no equivalent exchange).
From an individual standpoint (that of social democracy) the worker is
paid for 'necessary labour' that is, for the time taken to produce
sufficient commodities to cover the wage. But from a class point of view
all labour is rendered free since all workers are paid from the wealth
accumulated from past generations of workers (Marx, 1970). The form of
exchange is a 'mere semblance'. The capitalist, it is true, pays the worker
the value of his or her labour power in money, but this money is merely
the transmuted form of the product of his or her labour. The capitalist
class is constantly giving back to the working class part of what they
themselves have produced (Marx, 1970 p. 712).
Secondly,
wage-labour has nothing to do with free will; not just because we have
no real choice but to sell ourselves for a wage (or starve) but also because
the availability, structure and payment for these jobs is dictated by
the capitalist system, as recessions demonstrate time and again.
The
question, therefore, becomes: how have class relations of exploitation,
coercion and subordination - accurately reflected in the old legal form
of master and servant - come to take their current contractual legal form
where they appear as relations of exchange, free will and equivalence?
For
some, it is the simple result of an ideological trick: the 'contract'
of employment is a fiction. For materialists, however, the illusory legal
representation (with its enormous Political consequences) arises from
social experience, not from ideological trickery. The move from the old
status-based master-servant laws to the contractual, employer-employee
conception must be historically traced to changes in social relations
and their forms of appearance.
From
Master and Servant to the Contract of Employment
Prior
to 1875, workers were not treated as equal before the law. They were subject
to the master-and-servant legislation which reflected the common-law conception
of the master's absolute authority over the servant. At common law the
position of the master to the servant was analogous to that of parent
to child or, at that time, husband to wife. Onerous duties were imposed
on servants and it was a criminal offence (punishable by imprisonment)
to disobey the master, leave work without his permission, fall to attend
work, or 'commit any other misconduct or misdemeanour'. The relationship
was an open and visible legal relationship of subordination and domination;
a non negotiable-status, rather than a contractual, relationship.
Workers
only came to be treated as formally free and equal to their employers
after 1875, with the repeal of the master-and-servant legislation. Ideologically,
this was of great importance, for the class-based, exploitative nature
of wage-labour so clearly expressed in master-servant concepts was now
concealed beneath a contractual form. Thereafter, 'the position of the
ruling class [was] not supported by a privileged legal status' (Simon,
1954, p. 160). Formally, capitalists no longer had any rights which workers
did not have. Their relation was no longer determined by status, but by
contract, and the law regulating their relation was now a part of the
ordinary law of contract. More generally, this process laid the foundations
for law's claim to full autonomy from socio-economic relations, because
it could now be plausibly argued that law no longer expressed and reflected
class domination and exploitation. All men (if not women) were formally
equal before the law; law, therefore, could lay claim to being classless.
The
explanation for this development Is to be found in changes that took place
in production processes during this Period and, in particular, in the
methods whereby profits were made (in Marxist terms, whereby surplus value
was extracted). That is, In the transition during the nineteenth century
from 'manufacture' to 'machinofacture' and from what Marx called absolute
to relative surplus value.
Despite
the so-called industrial revolution, eighteenth- and early nineteenth-century
production methods were predominantly labour intensive and characterised
by the employment of skilled wage-labourers, by 'manufacture'. The division
of labour within workshops took the form of the simple cooperation of
skilled workmen who, although they were increasingly tied to a particular
task, were nonetheless of' singular importance within the total labour
process' (Kinsey, 1979, p. 54). In Marx's words: '... the whole body is
paralysed if one of its members is missing' (Marx, 1970, pp. 346-7). Throughout
this period, therefore, workforce discipline was a problem for capitalists,
who needed to subjugate skilled labour in order to orchestrate production.
The power of private property - that is, the absolute right of the capitalist
'to use and abuse, and exclude others, at his will, from the means of
production' - had to be 'complemented by coercive legislation and common
law which tied the worker in time and place to capital' (Kinsey, 1979,
p. 54); hence the use of the Statute of Labourers 1399, the Statute of
Artificers 1563, the Poor Law, and the master-and-servant legislation.
In this period, wage-labour was only 'formally subordinated' to capital.
Crucially,
at this time it was apparent that the source of profit (surplus value)
was labour power. The connection between profit and labour time was more
visible, for the largest input into the production process was living
labour. This was reflected in the struggle over the length of the working
day. As Marx wrote: 'in the period of manufacture, if one considers capital
in the actual process of production as a means of extracting surplus value
then the relationship is still very simple and the actual connection between
labour power and profit imposes itself upon both workers and capitalists
in their consciousness. The violent struggles over the limits of the working
day demonstrate this strikingly.' (Marx, 1970; Peter Fitzpatrick in this
book) In the words of one master to a factory inspector: 'If you allow
me to work them an extra ten minutes a day, you put £1,000 a year
in my pocket' (Marx, 1970). In political economy, these insights were
reflected in the labour theories of value of Smith and Ricardo, and in
the open recognition of the importance of status and class (hence, political
economy, not economics).
Indeed,
many historians argue that because of the visibility of exploitation at
this time, large sections of the working class had revolutionary, anti-capitalist
views (Abercrombie, Hill & Turner, 1980; Lazonick, 1978). They sought
the 'abolition of wage-labour' rather than 'a fair day's work for a fair
day's pay'. In consequence, many trade union rule-books, dating from this
period, state as their declared aim the taking into social ownership of
the means of production, distribution and exchange.
The
gradual transition to 'machinofacture', involving the use of machines
and factory production, brought profound changes. Under manufacture the
workers made use of tools and simple instruments; under machinofacture
the machines made use of them. The coming of machine and factory production,
therefore, created mass labour, brutally displacing the skilled labour
of the craftsman with the unskilled labour of the machine-minder. The
pace and nature of work came to be dictated by the machine, with workers
increasingly rendered mere appendages. Greater profitability was now principally
achieved (as it is today, at least in the First World) by making labour
more productive, rather than by lengthening the working day. In Marxist
terms, the emphasis was on relative rather than absolute surplus value.
In this deskflling process, the workers were partially disempowered, for
they were now much more easily replaced. It became possible for capitalists
to employ larger numbers of women and children who were weaker organisationally,
as well as cheaper. The emergence of machinofacture, therefore, greatly
broadened the labour force available to capital. Moreover, the machine
not only increased productivity, it also enabled capitalists to control
the intensity of the work process indirectly through the regulation of
the speed of the machine. Domination seemed to emanate from the nature
of the machines rather than from persons; the personal rule of the capitalist
was replaced by the apparently impersonal rule of the machine.
Indeed,
in this process, the class nature of production relations became even
less clear. Owners progressively withdrew to become mere shareholders
and loan/stockholders (drawing dividends and interest) and managers and
technicians took over the actual running of production. The formerly obvious
and visible nature of class authority in the workplace was eroded; management
could claim to be a purely scientific and technical matter (see Kinsey,
1979, p. 58). Even more significantly, the move to machinofacture and
factory production contained within it the seeds of a complete fetishisation
of relations between wage-labour and capital, and a complete concealment
of exploitation.
As
we have argued, under manufacture the source of profit was recognised
to be labour power. However, once production cannot be carried out competitively
without machines, production becomes increasingly capital, rather than
labour, Intensive. As larger and larger sums of money are required to
commence production, the money capitalist - Mr Moneybags as Marx calls
him - can turn to labour and say,' Without me there could be no production.'
Indeed, assuming capitalist production, this is totally accurate: money
capital now appears to be autonomously productive, for, as Cohen suggests,
labour power and machines appear productive by being the embodiment of
it (Cohen, 1978). These developments Marx called the 'fetishisation' of
capital (Grigg-Spall, Ireland & Kelly in this chapter; Cohen, 1978;
Sayer, 1979). This is the belief, based on the way things appear, that
capital is as productive of value as labour; that they are both simply
'factors of production', entitled to their' fair' share of the proceeds
of production. This fetishisation of capital masks exploitation and class
division, and provides the basis for treating the exchange between capital
and labour as an exchange of equivalents between equals - the basis, that
is, for the contract of employment.
Under
manufacture, the origins of profit in labour time was apparent. With machinofacture,
this connection is lost to consciousness, and capital and labour appear
to stand as equals in the production process and to exchange equivalent
for equivalent. Workers come to accept as natural, necessary and right
the claim of money capital to the profits of production. The hierarchical
organisation of the workplace geared to profit-making comes to seem inevitable
and necessary. This is reflected in the acceptance by working-class organisations,
trade unions and the Labour Party of the 'naturalness' and inevitability
of the capitalist market (see John Fitzpatrick in this book).
Elsewhere,
this change was reflected in the demise of the labour theory of value
and the classical political economy of Smith and Ricardo, and in the rise
of neoclassical economics with its concentration (like the modern form
of capitalist law) on exchange relations between isolated Individuals;
on what Marxists would call the fetishised appearances of the market (Fine,
1984; Grigg-Spall, Ireland ~ Kelly in this chapter). The so-called autonomy
of law, the idea that law is unconnected to social and economic relations,
and the concept of the rule of law - as expressed in the works, for example,
of Dicey and Hayek is predicated on the same premises (Dicey, 1959; Hayek,
1944).
Machinofacture,
and the real subsumption of labour that it engenders, does not, however,
entirely eliminate the legal endorsement of and support for managerial
authority in the workplace. The contract of employment continues to retain,
in the form of implied terms, elements of the old master-and-servant law
(Fox, 1974). Thus, for example, the courts imply into the contract non-negotiable
duties of obedience, cooperation, fidelity and trust, which employees
necessarily owe to their employers (see, for example, Secretary of State
for Employment v. ASLEF [No 2] [1972] 2 All ER 949). Even the terms 'master'
and 'servant', with their implications of unequal status, are still used
with great regularity by the judiciary. For some conservative writers,
this is a reflection of the 'true nature of the relationship': the new
terms 'employer' and 'employee' are simply an attempt to deny reality
(Scruton, 1982, p. 293). In Roger Scruton"s words,' capitalist relations
of production involve ... the same element of "unfree obligation" that
attached to ... feudal relations ... [An] objective of modern radical
conservatism [is] ... to endorse the popular sentiment that the relation
is not and ought not to be, contractual' (Scruton, 1982, p. 222).
Reconsidering Recent Developments in Labour Law
Indeed,
in the last 20 or so years (see In Place of Strife, 1969, Cmnd 3888),
the need for the legal disciplining of the workforce has been particularly
acute in Britain, as a prolonged crisis of profitability has endured.
The emergence of labour law as a separate legal category during this period
can be largely attributed to the legal and other measures taken in the
face of this problem. Certainly, the changing contours of modern labour
law can be fruitfully analysed in terms of the Mists and turns of the
profitability crises of Fordism and Keynesianism and the attempt to resolve
them through new regimes of so-called flexible accumulation and post-Fordism
(Harvey, 1990). Recent developments in labour law can be seen as part
of an endeavour to overcome the problems of profitability by tightening
work discipline, weakening trade unions and reinforcing the powers of
management.
It
is in this context that the legislation of the Thatcher government must
be examined. In a series of piecemeal changes embodied in five main acts
- the Employment Acts of 1980, 1982, 1988 and 1990, and the Trade Union
Act 1984 - the legal position of capital vis-à-vis labour has been
greatly strengthened. The internal affairs of unions are now heavily regulated;
indeed, many obligations are now imposed on unions which are not imposed
on employers, employers' associations, corporations or other organisations
of capital. Trade union immunities have been reduced, their political
activities regulated (again in ways not applied to companies) and all
secondary action declared unlawful. Union members often possess more rights
against their union than they do against their employer. At the same time,
the ambit of unfair dismissal has been reduced, maternity rights cut back
and minimum- wage provisions emasculated. The catalogue of changes is
long (Hendy,1989).
Workers'
Rights
In
this light the struggle for workers' rights becomes important. If rights
are potentially available to clothe bourgeois interests then they should
also be available for the working class (see Fine ~ Picciotto and Peter
Fitzpatrick in this book). The terrain must be contested. The struggle
for rights has considerable organisational importance and lays the ground
for their supercession, but it is a tactical not a strategic struggle.
What is necessary for the emancipation of the mass of the people is their
effective de facto control of the means of production, distribution and
exchange. The struggle for rights is subordinate to that end. As critical
lawyers we should be aware of this, and not privilege the legal work that
we do.
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