Guy Davidov and Brian Langille (eds) The Idea of Labour Law

Guy Davidov and Brian Langille (eds) The Idea of Labour Law. Oxford: Oxford University Press, 2011. 456 pp., AUD$114.95 (hbk).

The Idea of Labour Law is something too important to be left to lawyers alone; so I hope this edited collection is read by a wide audience in employment relations. It brings together 25 chapters, the majority interesting and well-written, concerned with the history, normative foundations and scope of labour law as a discipline. The impressive roll of contributors, from Canada, South Africa, the UK, Spain, Israel, the US, Argentina, India, Italy and Germany, confront the well-known crises facing the subject and turn them ‘into an opportunity for reinvigoration and renewal … from first principles’ (p. 2). John Howe carries the flag for Australia and I discuss his chapter later.

In this review, I will concern myself with two of the key battlegrounds in the collection, taking up two or three of my favourite chapters in respect of each. The first and primary theme is the normative foundations of the idea of labour law. This concerns whether labour lawyers need a new paradigm, or simply need to apply the classic, tried-and-tested theories of justice to new problems. The second issue concerns the breadth of labour law’s subject matter. Pretty much everyone seems to agree that horizons should be expanded beyond standard employment relations and collective bargaining; the only question is how broad. I then finish the review with a comment on the project of the book itself.

‘Labour law has always had, and will always have, a theory of justice’ (p. 102). So begins a section of Langille’s important chapter. Like a number of contributors, the dominant theory of justice is identified as a concern for the inequality of bargaining power inherent in the employment relationship, as classically articulated by Kahn-Freund. But Langille argues that this constituting narrative is out of date: it holds labour lawyers captive (pp. 105–107), such that their focus will either be too narrow – exclusive of, for instance, more entrepreneurial workers, or too shallow – inclusive of non-standard work relations but (quoting Freedland) ‘at the cost of a normatively crippling compromise’ (p. 108). So Langille turns to Amartya Sen’s capability approach, which prizes expanding the opportunities available to individuals to achieve certain states and functions, towards the ‘real capacity to lead a life we have reason to value’ (p. 112). Labour law becomes ‘the regulation of human capital deployment’ (p. 114) and attention is focused on personal development, rather than simply redistributing power and pitting justice against markets (p. 119).

This is powerful stuff, and it stands out in a book in which many other chapters also invoke the capability approach, although less comprehensively than Langille. (Indeed, the capability approach appears to have been on the rise since a similar endeavour by the same editors, Boundaries and Frontiers of Labour Law, in 2006.) However, I am not convinced that the capability approach adds much, and I worry that it distracts us from labour law’s core missions and means for achieving justice. Labour law is already concerned with the ends of having a decent job, with participation and access to fair terms and training. These concerns have been honed and adapted specifically to the labour market context, and not just in respect of wage-labourers. The capability approach, on the other hand, is primarily concerned with comparative individual well-being, and is very open-ended in relation to the means to achieve the kinds of ends particularized above.

I tend to support the approach of Dukes, Weiss and Davidov in their chapters: that the goals of labour law remain true, but that new means of achieving them are required in light of new labour market realities (see, e.g. Weiss, p. 46; Davidov, p. 188). Taking up the capability approach – which on some formulations rejects collective capabilities, is uncertain as to means and in particular obscures collective means – would not, then, appear to be the answer. In particular, Dukes’ exceptionally good chapter on Hugo Sinzheimer and the constitutional function of labour law (referring to how workplace norms are created and the hierarchy of norms) emphasizes emancipation and democratization (dialogue, participation) and does so without being focused solely on imbalances of power (p. 65). She rearticulates labour law’s historical concern for the dignity of the worker (‘labour is not a commodity’) for a globalized era, albeit that some of her arguments in respect of the relation between the ‘labour constitution’ and the ‘economic constitution’ need refining.

This faith in tried-and-tested theories of justice is amplified, rather than weakened, by a consideration of how far we are from achieving fairness at work; for instance, see Sankaran’s chapter on labour law in India: ‘the idea of labour law for 90 per cent of India’s work force (running into hundreds of millions) is well summed up by the phrase “the best is yet to be”’ (p. 223; see also the chapter by Benjamin).

I would also add that the analytical value of the capability approach and its encouragement for holistic assessments of individuals’ well-being in terms of their opportunities strikes me as met in a crucial respect by Freedland and Kountouris’s concept of the ‘personal work relation’. This is a means of examining the legal construction of work, which encourages scholars and policymakers to consider the entire ‘work-related situation within which each personal work relation operates’ (p. 197) and ‘embraces the objectives of promoting dignity, capability and stability in the arranging and conduct of personal work relations’ (p. 208). Again, it is not entirely clear what Langille’s calls for a capability approach would be adding to those authors’ carefully adapted analysis.

In relation to the second issue identified earlier, labour lawyers do generally agree on the need to reconsider the scope of the subject by a consideration of (variously): social security law (convincingly argued for in Weiss’s chapter); migration law (see Vosko); education and training; informal work; and unpaid care work, for instance, from a feminist perspective. However, it pays to remember Weiss’s caution: ‘labour law is not to be misunderstood as a tool to compensate the position of the weaker party everywhere’ (p. 49; see also the chapter by Zatz).

Howe’s argument in this connection is that labour lawyers should add industry policy to the above list of concerns. We should be ‘interested in the role and impact of a range of industrial policies, including tariffs, industry support schemes, as “regulation which affects the distribution of labour between sectors of the economy and different industries”’ (pp. 300–301). His chapter is engagingly argued by reference to the Harvester Case and the classic Australian innovation of the ‘living wage’ – which, he reminds us, was engineered by Justice H.B. Higgins pursuant to the Excise Tariff Act 1906 (Cth) rather than by orthodox labour law.

Yet, in my view, some problems emerge in this extension. The core experience of lawyers is as process architects and managers (in the legal philosophy of Lon Fuller). While the legal underpinnings of a living wage fall very much within that ambit, Howe’s ‘broad idea of labour law’ delves very deeply into political economy. Attention to everything that touches on the ‘“reality” of labour law’ (p. 302) is a very great extension indeed. Further, it is difficult to see how Howe’s concern for industry policy is meaningfully referable to labour law’s traditional theories of justice. Which workers are we concerned with, and from whom should they be protected?

A troubling answer may be apparent. Howe’s emphasis on industry policy encourages a nationalistic focus for labour law: the promotion of decent work and high standards in one country (given an aim is for ‘us’ to outcompete the industry of other nations). The protection of workers appears, then, to be against other workers beyond our shores. It is worth contrasting the chapters by Blackett and Vosko (see also Zatz, p. 255). In her thought-provoking (though rather turgid) chapter, Blackett criticizes the resolutely domestic focus of labour law scholars and highlights how ‘labour law has acted to seal out the South, or worse, to sustain … the colonial and neo-colonial division of labour ensuring privileged access’ for some, but not others (p. 428). Similarly, Vosko argues against ‘methodological nationalism’ (p. 368) and argues for norms of participation, dialogue and solidarity that do not assume ‘a particular scale of intervention’ (p. 384).

Finally, I want to say something about the nature of the enterprise of this book. There has been no shortage of these kinds of studies in recent years, as the first few footnotes of each chapter demonstrate. This leads one of the contributors, Alan Hyde, to effectively go on strike. The editors describe his chapter as a ‘witty critique’ (p. 3) of the ‘lofty’ ideas of labour lawyers. He does have some good lines, but I think his chapter is better described as ironic and despondent: ‘All the blossoming ideas of labour law were, at bottom, just ways of coping with the disappearance of the pillars: oligopolistic employers, unions, jobs, strikes or new law’ (p. 91). ‘This time, as a source of inspiration, it is really over’ (p. 97). Hyde is, of course, an American and, unhappily, these sentiments are a product of the extraordinary ossification of statutory labour law in that country. Hyde’s point about detached introspection is well made, but I think the totality of the chapters in this edited collection generally evinces a good balance between defining and refining ideals and concepts, and pressing ahead with new research agendas.

The only very general criticism I would make is that I think there is a tendency among some of the contributors to overstate the coherence of the subject in years past, and a tendency to underemphasize the value and productiveness of conflict concerning its future (save, surely, the chapter by Lopez, Chacartegui and Canton, which is all about transformative conflict). For instance, Judy Fudge begins her chapter by saying: ‘The problem is that there is no consensus about the conceptual and normative foundations needed to move the project of labour law forward’ (p. 120). For my part, I do not see this as a problem at all. I am all for solidarity, but consensus would strike me as a worrying sign. Thankfully, in this book, there is a lot to pick and choose from, in terms of new ways of thinking and teaching, and potential for cross-fertilization.

As this book demonstrates, labour lawyers are generally apostles and activists, as well as teachers and technicians. I like to think this makes them different from other lawyers (that difference is probably what drew me into the subject in the first place). If nothing else, it makes for relatively lively academic reading. And again, for me, the most valuable arguments in The Idea of Labour Law are those that aim to protect and advance the same kind of dynamics in workplaces, as are occurring in this very book: dialogue and debate of the kind that fosters rich and lively communities.