Academic journal article Capital & Class

Capitalism, Regulation Theory and Australian Labour Law: Towards a New Theoretical Model

Academic journal article Capital & Class

Capitalism, Regulation Theory and Australian Labour Law: Towards a New Theoretical Model

Article excerpt

Introduction

The end of the post-Second World War 'long boom' in the mid-1970s proved the beginning of a process of political-economic change that has fundamentally altered and reformulated the institutions of Australian industrial relations, and in particular the regime of labour law that underpins them. Labour law during the boom unified a permissive attitude towards organised labour, bargaining between capital and labour at a broad occupational level, a series of institutions that diffused wage gains from leading sectors, and the growth of administrative fixes to heightened worker power. From the mid-1980s onwards, however, this regime was usurped by another which combines hostility to trade unions, a destruction of the conciliation and arbitration system, a severing of the institutional links homogenising the wage structure and associating productivity and wage growth, and an intensified juridification on the back of the increased valency of market forces.

Despite the significance of this shift, the nature of legal change remains poorly theorised. Both labour law and industrial relations remain disciplines beholden to a distinctly empiricist method (Treuren 1997a: 59; 2000: 75). Even the development within Australian scholarship of the 'labour market regulation approach' (see, for example, Arup et al. 2006) has largely failed to provide a rigorous account of the political economy of legal change beyond the recognition that neoliberalism has materially altered the parameters of industrial relations (Quinlan 2006: 21-42). This inability to explain the articulations between legal change and the deep structures of Australian capitalism is apparent even in broader political economy work that explicitly seeks to do so (such as Mack 2005) . Here, the source of the poor theorisation of legal change is not so much an empiricist method as a static conception of law as an element of a reactive superstructure (as predicted by Pashukanis 1978: 53-55; Collins 1982: 30-34; for notable exceptions in the Australian setting, see Fraser 1978; Wells 1989). Similarly, and although generative of much discussion, conceptual and methodological flaws dog more recent approaches to the study of labour law institutions, such as the Varieties of capitalism' (VOC) and 'legal origins' (LO) schools.

What is needed for a rigorous account of labour law development, and legal change more broadly, is a Marxist analysis that reconciles both the abstract and concrete functions and structures of law within the capitalist mode of production. Although there are a variety of important contributions to a Marxist theory of the law (see, for example, Renner 1949; Pashukanis 1978; Fraser 1978; Kay & Mott 1982; Fine 1984; Mieville 2006), (1) most have tended to emphasise the abstract place of law within capitalism. Although perhaps partly a function of the abstract language which characterised many of the Marxist debates of the 1970s and 1980s, the more important determinant of this focus would appear to be the lack of a sophisticated, nuanced account of capitalist change and evolution. If one cannot understand the unfolding of capitalism's abstract tendencies into disparate concrete forms, any account of law must perforce operate at the abstract level and, in so doing, elide the complexity of capital's temporal existence.

The Parisian regulation approach (PRA) is the body of theory which has most fruitfully tackled the task of explaining the dialectical relationship between capitalism's abstract tendencies and concrete structures. As we shall explore in greater detail below, the PRA represents an effort to generate an intermediate level analysis of capitalist development that, whilst taking the methodological lead from Marx, employs discrete concepts operating at a lower level of abstraction (Neilson 2012: 160). If it were unified with the more sophisticated works of Marxist jurisprudence, such as Pashukanis (1978), Kay and Mott (1982) and Fine (1984), the PRA would be a tool of considerable analytic power in understanding how the tendencies and contradictions of capital are differentially inscribed in the legal form as part of distinct epochs of capitalist development. …

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