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Labour Law and Social Justice: New Beginnings

by Brett Heino on January 18, 2018

The law oppresses us and tricks us,
The wage slave system drains our blood;
The rich are free from obligation,
The laws the poor delude.

The Internationale adaptation of Charles H. Kerr translation from the original.

As these lines from The Internationale so graphically illustrate, the problems of class and social justice have always been understood, at least in part, as problems of law. Struggle over legislation is often one of the most visible and potent instances of class struggle, a reality amply demonstrated by centuries of historical experience. The 1351 Statute of Labourers, the Le Chapelier Law, the Combination Acts, the Ten-Hours Bill – these are just a few examples of laws which directly bore upon the very core of the capitalist mode of production, the wage-labour relationship between workers and employers. This region of the law, labour law, is undoubtedly one of the most crucial structures of a market society, mediating the terms and conditions upon which employees sell their labour power to capitalists. It is also the region of the law that, perhaps more than any other, has been bound up in some of the key social justice issues of the past three decades, including accelerating income inequality, entrenched unemployment and under-utilisation of labour, the increasing precarity of work and the marginalisation of trade unions. Most citizens of advanced industrialised economies will have had some experience of these forces, not to mention the growing legions of the working-class in the developing world.

In Regulation Theory and Australian Capitalism: Rethinking Social Justice and Labour Law, I have sought to demonstrate how these social justice outcomes are not accidental or casual; rather, they are intimately related to the nature of capitalist transformation which has been underway since the 1970s and 1980s. Of course, many have noted that a suite of broadly similar changes have occurred in the labour law regimes of Western states, including the degradation of the standard employment model, the profusion of precarious forms of work such as casual and contract labour, and an increasing focus on individualism at the expense of collective labour relations. However, what is generally lacking is a theoretically rigorous account of why this has happened, beyond the superficial observation that neoliberalism is associated with these types of legal change. Such a perspective tends to carry implicit within it a conspiratorial view of capitalist class power and an instrumental conception of the state and law; a more-or-less coherent, class-conscious clique hijacked the state in the 1980s, and sought to transform it in it’s own image. Although not necessarily untrue, this conception is an inadequate one, particularly in terms of its ramifications for the political strategy of the working-class. If the hostility of labour law systems around the world can be explained away as the result of state personnel, rather than an inherent feature of this particular epoch of capitalism, then it encourages a statist response, strengthening the social democratic and labour parties which have proven themselves part of the problem over the past three decades.

I argue for a very different approach in Regulation Theory and Australian Capitalism. My central contention is a very simple one – if we want to understand the nature of labour law’s transformation, we have to understand the epochs of capitalism within which it is embedded. I seek to comprehend not just the impact different models of capitalism have on law, but also to demonstrate that labour law is a necessary constitutive element of those models themselves. The book is thus first and foremost a work of political economy.

In terms of the political-economic tools and concepts at hand, however, it was quickly apparent that there was a lacuna which made a theoretically rigorous yet empirically sensitive approach to the task difficult. The body of work which I found best suited to the exercise of periodising capitalism into epochs, the Parisian Regulation Approach (PRA), has very little to say about law directly. To the extent that law is discussed, it is usually in the context of discussions of broader compass, in which the functional capacity of law to perform key tasks tends to be assumed. Marxist jurisprudence, which does have the virtue of talking about law as a form and its place within the capitalist mode of production, is, however, often highly abstract and difficult to operationalise empirically. The two bodies of theory which address the questions of law and periodisation from the perspective of political economy thus suffer from two mutually reinforcing weaknesses which seem to provide the scholar with the choice of theoretical sophistication or empirical sensitivity, but not both.

In the book, I seek to illuminate an escape from these unsatisfactory alternatives by forwarding a novel synthesis of the two. I begin with a central premise which I have borrowed and developed from key Marxist legal scholars, including most importantly the great Soviet jurist Evgeny Pashukanis – that law is best conceived as a juridic form of capitalist social relations. As capitalist social relations express themselves in economic forms, such as markets and money, so too are they expressed juridically in the shape of law and the state. Let me state the case simply – I proceed on the assumption that the law and the state are part of a basket of invariant features of the capitalist mode of production, in the absence of which it would be incorrect to talk of capitalism. A stateless, lawless society would not in the long-run be a capitalist one.

Within this vision of law as a juridic form of capital, we are confronted with the crucial sub-set of labour law, the prime abstract function of which is the continued commodification of labour-power. Laws regulating wage rates, the terms and conditions of employment, the exercise of managerial prerogative – all have at root this essential function of ensuring the reproduction of workers as workers. However, labour law simultaneously presents one of the most graphic contradictions of capitalist society, where the law of things (contract and property law) attempts to commodify and regulate a living, breathing subject, the proletarian. Through class struggle, workers can attempt to impose their own political economy on the legal form, so that it might better reflect their own distinct interests. The state, under pressure from working-class activism, can be made to register these interests through acts of what I, following Geoffrey Kay and James Mott, dub ‘administration’. The abstract equality and meeting of de-classed juridical equals implicit in the ‘classic’ law of things can be usurped by administrative acts and institutions, such as arbitral tribunals, industry-level boards, corporatist institutions etc, that take as their reference point the collective, rather than the individual. Such bodies represent working-class power at the same moment that they formalise and channel it in quasi-judicial ways, creating a continuum of law and administration.

What I think is perhaps the seminal contribution of my book is linking this idea of a law-administration continuum, which is a logical conceptual unfolding of Marxist jurisprudence, to a PRA-inspired periodisation schema. Derived from the PRA, I deploy the concept of a model of development, ‘a coherent combination of an industrial paradigm, accumulation regime and mode of regulation’ (p. 17). Models of development represent broadly stable instantiations of the capitalist mode of production, in which the various crisis tendencies implanted in capitalism’s DNA are provisionally answered, mitigated or deferred. I found that particular models of development were bound up with distinct formulations of the law-administration continuum. The result of this conception? An acknowledgement that, ‘[t]o the extent that models of development work out the many contradictions of capital to varying degrees, are premised upon a particular modality of accumulation and extant institutions and channel the class struggle in different fashions, the regimes of labour law corresponding with them will be unique’ (p. 42). Herein lies the key – different models of development presuppose different regimes of labour law, regimes which both reflect the structural dynamics of those models and help constitute them.

The bulk of the book is dedicated to unfolding this relationship in the context of Australia, from the post-World War II period to the current day. Australia is a particularly interesting study in which to develop my theory of labour law, as the lynchpin of its regime from the early 1900s until the late 1980s/early 1990s was a highly unique system of compulsory arbitration, a quasi-judicial system of arbitral tribunals which could compulsorily determine wages and conditions in instruments known as ‘awards’. Moreover, as a small economy historically dependent upon commodity exports to heavily protect an often inefficient manufacturing sector, Australia poses different questions to the North American and European states which have historically been the stock-in-trade of PRA analysis. In synthesising PRA concepts with my theory of juridic forms, this book thus does two things: it affirms the utility of the PRA as a general approach to studying capitalist societies; and, through deep study of a particular state, it operationalises my model of labour law change.

Without delving into too much detail, I find in this book that post-World War II Australian capitalism can be periodised into two distinct models of development, separated by a period of crisis: antipodean Fordism (1945-early 1970s) and liberal-productivism (late 1980s-present day). These are derived from regulationist ideal-types, namely Fordism and liberal-productivism, but have been sensitised to the Australian context, revealing unique structures, mechanisms of coherence and trajectories of crisis. Most importantly, I identify that each model was associated with a distinct regime of labour law, which simultaneously performs certain key abstract functions and helps constitute the fabric of that model. Using a slice approach based on key historical dates, as well as a series of case studies in the metals, food processing and retail sectors, I am able to demonstrate the nature of these two regimes:

  • Antipodean Fordist labour law regime: key features include: ‘a notion of the “standard”, full-time employment contract…a permissive attitude towards organised labour, bargaining between capital and labour at a broad occupational and/or industry level, a series of institutions which diffused wage gains from leading sectors and the growth of administrative fixes to heightened worker power’ (p. 55).
  • Liberal-productivist labour law regime: key features include: ‘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, intensified juridification and the erosion of the standard employment model and the profusion of precarious forms of employment’ (p. 68). Competition becomes a central principle around which the regime is structured. Also key is the intensification of managerial prerogative, particularly insofar as employers gain the ‘flexibility’ to functionally and numerically deploy labour as they deem fit.

How these labour law regimes evolved, how they functioned, how they fell into crisis – I leave these to the readers of the book! What I wish to conclude with, however, is a teasing out of a point made throughout the entire study that, although my theory of the roles and evolution of labour law is operationalised in the Australian context, the model itself is of much wider application. So long as the PRA ideal-types are sensitised to the context of particular states, as I do with Australia, the union of a theory of juridic forms with the PRA promises an account of legal function and change which is theoretically rigorous yet empirically rich, helping to resolve a situation where scholars are forced to choose between the two poles.

If we accept the general contention of my book, that we are currently in the epoch of the liberal-productivist model of development, then we should be on the lookout for the features of the liberal-productivist labour law regime I identified above, knowing that these are not incidental or necessarily opportunistic, but are instead deeply embedded in the structure of modern capitalism itself. The recent labour law reforms in France, made by decree of French President Emmanuel Macron, present a useful opportunity to take my analysis of the structural features of the liberal-productivist labour law regime and apply it outside of the Australian context in which it is operationalised. Even a cursory analysis reveals that the reforms of Macron bear the imprint of the liberal-productivist labour law regime towards which they strive:

Professor Frank Stilwell has commented of Regulation Theory and Australian Capitalism: Rethinking Social Justice and Labour Law that ‘[t]he focus is Australian, but the implications are global.’ As even this glance at recent developments in France indicates, the model and account of labour law I have developed is indeed applicable in other contexts, and can illuminate similarities and differences in the experiences of different states. In this sense, I see my book not as an ending, but rather a beginning. It represents the first step in a story of labour law change I have always intended to be global. The struggle against some of the appalling social justice outcomes produced by modern capitalism over the past three decades presupposes both this global orientation and a more aware and knowing approach to labour law than has hitherto been in evidence.

I hope Regulation Theory and Australian Capitalism: Rethinking Social Justice and Labour Law to be one small contribution to this ongoing effort.

Brett Heino
Brett Heino is a Lecturer in the University Technology of Sydney (UTS) Faculty of Law. His research interests include the political economy of law (with a focus on labour law), the structure of post-World War II Australian capitalism and regulation theory

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