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.