Critical Labour Law: Then and Now

Abstract

This chapter is a contribution to a Handbook on critical legal scholarship. In it, the critical tradition in labour law is elaborated by way of the identification and discussion of four key elements of that tradition, namely: (i) a (partial) rejection of the public/private divide in law; (ii) a commitment to legal pluralism; (iii) legal scepticism; and (iv) the adoption of socio-legal methods. Throughout, reference is made primarily to the two ‘founding fathers’ of the field with whose work I am most familiar, the German-Jewish scholars Hugo Sinzheimer (1875-1945) and Otto Kahn-Freund (1900-1979), and to examples drawn from UK and German law. My suggestion is nonetheless that these four elements were common to mainstream labour law scholarship on both sides of the Atlantic, in the Antipodes, and in other jurisdictions which modelled their labour laws on those of European or Anglo-American nations (eg Japan, South Korea). In the second part of the chapter, I explain the threat posed in recent decades to the continued viability of systems of labour law that are broadly-speaking protective of workers interests, and emancipatory of workers, by myriad pressures associated with globalization and deindustrialization. Again, the discussion proceeds by way of consideration of the four key elements of the critical tradition identified in Part I. The main question addressed is that of how scholars have sought to adapt their approaches and methods so as to continue to make interventions that are critical in nature and concerned, still, with the transformative potential of labour law.

Keywords: critical legal studies, labour law, labor law, critical labour law, Hugo Sinzheimer, Karl Klare

JEL Classification: K31