Examining the Law Syllabus: The Core

By P. B. H. Birks; Society of Public Teachers of Law (London, England) | Go to book overview

13. Labour Law: Economic Approaches

SIMON DEAKIN

LABOUR Law scholarship in the modern period has been considerably shaped by interdisciplinary approaches. In the 1960s and 1970s the major influence was industrial sociology. Kahn-Freund's seminal analysis1' directed the attention of lawyers towards collective bargaining, then an almost wholly neglected area, and towards an appreciation of the extra-legal forces which operated in the industrial relations system. This approach complemented the growth of Industrial Relations as a discipline in its own right, a process which was given considerable impetus by the research programme carried out under the auspices of the Donovan Royal Commission and by the clear importance accorded to industrial relations reform in the policy debates and legislation of this period.

These developments have had an enduring influence. It remains the practice in some universities to introduce Labour Law students to the subject through the classic first chapter of Kahn-Freund Labour and the Law,2 and until recently the more ambitious students would probably have followed this up with some readings on the theory of industrial pluralism and the competing 'unitarist' and 'radical' perspectives.3 Although collective bargaining underwent a decline in the 1980s, it has not gone so far as to make this 'I.R. approach' redundant; even in 1992, after thirteen years of hostile legislation, the terms and conditions of over 50% of employees are affected by a collective agreement.4 An understanding of the nature of collective bargaining remains an essential part of the Labour Law discipline.

Nonetheless there are a number of reasons for looking increasingly towards economic approaches in conjunction with those of industrial sociology as a source of inter-disciplinary perspectives. In the first place there have been structural changes in the labour market, the pace of which accelerated in the 1980s. 'Full employment' has apparently become a thing of the past and employment itself encompasses a more diverse range of relationships; numbers of part-time and temporary workers, outworkers, fixed-term contract workers and the self-employed have steadily increased. Government labour market measures, such as the Youth Training schemes and subsidies such as the Temporary Short- Time Working Compensation Scheme, have also led to the proliferation of different forms of employment. The search for the reasons for the growth of these so-called non-standard employment forms and their implications for public policy have led to a greater concentration of analysis on the labour market and in particular on the question of labour supply and how that is structured by legal and institutional factors.

A second reason for the growth of interest in economics is the influence of economic theory on government policy. This has undoubtedly been considerable. The most important single statement is the 1985 White Paper, Employment: the Challenge for the Nation.5 This provided the rationale for the process of labour market deregulation which has seen substantial changes to legislation since 1979. Broadly speaking the deregulation programme seeks to restore the workings of the market by removing barriers to competition in the form of unnecessary regulatory controls. In the field of individual labour law the result has been a steady erosion of employment rights in the areas of job and income security and opposition to the extension of the remaining protective standards to cover part-time and other 'atypical' groups of workers. In collective labour law the effect has been rather different: the need, as the Government saw it, to tackle the extra-legal sources of trade union power has led to a proliferation of legislation concerning the scope of the trade dispute immunities and trade union procedures. In both cases it has been clear that economic theories and ideologies have played a part in driving the process of legislative change. In a subject such as Labour Law which is based to a great extent on legislation, the need to understand the policies behind the Trade Union and Employment Acts of the 1980s has inevitably focused the attention of scholarship on to these economic theories.

A third factor in the growing interest in economic perspectives concerns the debate over the social dimension of the European Community. The social dimension now looks like being something of a disappointment. Nevertheless, the question of whether the EC should have an extensive programme of social legislation, and what its effects might be, has raised a number of economic issues, in particular concerning 'social dumping'. Community law has a continuing influence in the area

____________________
1
"'The Legal Framework'", in A. Flanders and H. Clegg (eds.) The System of Industrial Relations in Britain ( Oxford: Blackwell, 1954); "'Labour Law'" in M. Ginsberg (ed.) Law and Opinion in Britain in the Twentieth Century ( London: Stevens, 1959).
2
3rd Ed. by P. Davies and M. Freedland ( London: Stevens, 1983).
3
See P. Elias, B. Napier and P. Wallington, Labour Law Cases and Materials ( London: Butterworths, 1980), at pp. 16-18.
4
Department of Employment, People, Jobs and Opportunity, Cm. 1810, 1992.
5
Cmnd. 9474.

-71-

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