LABOUR law is in a fix. The problems for the continued vitality of labour law courses are manifest. Diminishing student numbers, a reputation for being an overweight course due to excessive materials, and a reputation for supporting a socialist dogma which has little resonance for the young, are, together, the recipe for either abandonment or dismemberment. Like personal property or bailment, labour law seems threatened with extinction as part of the undergraduate syllabus. At the same time, however, I would argue that, despite the poor prognosis for the courses, the commitment of teachers, the sophistication of the legal and empirical analyses, and the breadth of studies has never been greater. We therefore find in schools of law a strange dissonance between a group of teachers and researchers who are motivated by a strong sense of vocation to promote the study of labour law, and, on the other side, diminishing classes, indifference, and even repugnance from the student body.
Does this matter? What is to be done?
The field of legal studies known today as labour law has, I suggest, been defined by three competing themes. These themes express a purpose to the collection and analysis of the legal materials. The purpose simultaneously explains the scope of the field of study and justifies its unity as an object of analysis and evaluation. At different times one of these themes has predominated, but then in due course it has been supplanted by another. I shall argue that the undergraduate syllabus should ensure that all three themes are present, for the exclusion of one or more diminishes the worth of the subject. But I shall also suggest that the three themes can be included under a novel organizational framework which at once highlights the diversity of themes and binds them together into a meaningful totality.
The first theme concerns the subordination of the worker in the employment relation. Whatever the explanation for this subordination, and this explanation it must be said remains controversial, few doubt the existence of subordination. It reveals itself in the language of work: 'boss', 'governor', 'head office', 'superiors'. What has united many conceptions of labour law, particularly those following Kahn- Freund,1 and supplied the motivation and cutting edge for its study, has been the sense that this element of subordination is unjust, and that the law should endeavour to combat it. The sense of injustice may stem from a variety of sources, but at its simplest it may be said that there is a perceived tension or even contradiction between the hierarchies of the workplace and the commitment of liberal societies to equality and liberty for all citizens. To resolve this tension, if not to eradicate it altogether, is the imputed purpose of labour law. Through legal regulation and other mechanisms, it is believed that labour law can resist or soften the presence of domination in the workplace.
The second theme which has guided labour law is the belief that its fundamental purpose lies in regulation of the labour market. The purpose of this regulation will be to enhance the efficiency of the market and to remedy market failures. Efficiency may be enhanced, for example, by active manpower policies operated by government which are designed to retrain and relocate workers so that the most productive labour force is readily available to employers. Government intervention might also seek to stimulate demand for labour through industrial and investment policies. The regulation of market failures aims to facilitate contracting by reducing transaction costs, as for example by the use of standard implied terms in contracts of employment, and to ensure that externalities such as the social costs of redundancies are properly included in the cost calculations of businesses. This theme of market regulation tended to predominate when the subject was called Industrial Law,2 and has recently again risen to prominence as an organising theme of labour law due to the work of Davies and Freedland.3
The third theme moves from the economic sphere to the political. It regards a crucial dimension of____________________