Civic Republican Political Theory and Labour Law
H. Collins, G Lester and V Mantouvalou, "Philosophical Foundations of Labor law" (Oxford, Oxford University Press, 2018) 104
34 Pages Posted: 13 May 2017 Last revised: 15 Jan 2019
Date Written: May 12, 2017
A number of justifications have been, and are, cited in favour of legal intervention in the field of labour law. The traditional approach has been to stress the role of labour laws in correcting the imbalance in bargaining power inherent within the employment relationship. Thus, "the main object of labour law has always been, and [...] will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship" (Davies and Freedland (eds), Kahn-Freund's Labour and the Law, 3rd edition (London, Stevens, 1983)). Kahn-Freund makes the point that labour legislation has interfered in the employment relationship, e.g. to regulate terms and conditions of employment, and furnish rules on the hiring and dismissal of employees, as well as the basic work-wage bargain or the exchange of the worker's services in return for remuneration. Labour law has also indirectly provided support for the effective functioning of collective bargaining under the umbrella of 'collective laissez-faire'.
However, in the contemporary context, the concern with the correction of inequalities in bargaining power via the prophylactic of labour laws or the social practice of collective bargaining has lost much of its force. Economists have attacked the notion that legal intervention is required to offset the unequal exchange of resources between the employee and the employer. Equally, the 'inequality of bargaining power' justification for labour law has been criticised for its lack of normative precision. The premise of the correction of imbalances in bargaining strength between the worker and the employer has therefore given way to two further justifications for labour law. First, by linking labour law closely to the functioning of the labour market and thereby anchoring it firmly within a market-driven ideology, there appears a perceived need to regulate labour market failures in order to achieve efficient labour markets. Second, a continued focus on the traditional social objectives of labour law gives way to a realisation of social justice through the repulsion of the 'economic logic of the commodification of labour' (H. Collins, Employment Law, 2nd ed. (Oxford, OUP, 2010) 5). However, much like 'inequality of bargaining power', neither of these two justifications offers an all-encompassing explanation for labour law's interference in contemporary employment relationships.
Following a brief analysis of the various rationales for labour law and their inadequacies, this paper therefore turns to political theories of social justice and domination to give a sketch of an alternative basis for intervention in the employment relationship. The paper draws upon works by Philip Pettit and Frank Lovett in the field of civic republican political theory to explore whether the employment relationship should be treated as one of the types of social relationship which are generally characterised by domination by one party (the employer) over another (the employee). If so, then there is an argument that labour law's purpose can be defined as rules, principles and doctrines forged by the common law and shaped by domestic and international legislation which are concerned with the minimisation of the domination exerted by an employer over an employee.
Keywords: Labour Law, Employment Law, Contract of Employment, Statutory Employment Protection, Employment Rights, Labour Rights, Civic Republican Political Theory, Non-domination Theory, Liberty
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