A brief history of labour law

Abstract

Labour lawyers today commonly think about their subject using ideas about workers' rights, economic efficiency for firms or for the market as a whole, or social justice for workers. These ideas are not new. But they did not play a major role in the early history of labour law. In the 1950s, labour lawyers used sociology to make sense of their subject. This chapter will explain how rights and economics – the two key perspectives to be used in this book – started to feature more commonly in labour lawyers' thinking in the 1970s, and attained the central place they have today. It will also demonstrate the importance of using more than one perspective to understand the law. Collective laissez-faire – the 1950s The work of Otto Kahn-Freund has exercised, and continues to exercise, a considerable degree of influence over labour lawyers' thinking. Writing in the 1950s, he drew on industrial relations theory – a branch of sociology – in order to understand the law. This was essential because anyone using a ‘black-letter’ approach – in other words, looking solely at the legal materials – would have acquired a wholly misleading knowledge of the relationship between employers and employees. For example, there were few legal controls on the circumstances in which employees could be dismissed. At common law, the contract of employment could be terminated if the employer gave notice. The courts did not inquire into whether or not the employer had a good reason for the dismissal. And there was no statutory intervention in this area until 1971. But this did not necessarily mean that, in practice, employers had an unfettered power to dismiss their employees.