Civic Republican Political Theory and Labour Law: A Sketch

Abstract

A number of justifications have been, and are, cited in favour of legal intervention in field of labour law. The traditional approach has been to stress role of labour laws in correcting imbalance in bargaining power inherent within employment relationship. Thus, the main object of labour law has always been, and [...] will always be, to be a countervailing force to counteract inequality of bargaining power which is inherent and must be inherent in employment (Davies and Freedland (eds), Kahn-Freund's Labour and Law, 3rd edition (London, Stevens, 1983)). Kahn-Freund makes point that labour legislation has interfered in employment relationship, e.g. to regulate terms and conditions of employment, and furnish rules on hiring and dismissal of employees, as well as basic work-wage bargain or exchange of worker's services in return for remuneration. Labour law has also indirectly provided support for effective functioning of collective bargaining under umbrella of 'collective laissez-faire'. However, in contemporary context, concern with correction of inequalities in bargaining power via prophylactic of labour laws or social practice of collective bargaining has lost much of its force. Economists have attacked notion that legal intervention is required to offset unequal exchange of resources between employee and employer. Equally, 'inequality of bargaining power' justification for labour law has been criticised for its lack of normative precision. The premise of correction of imbalances in bargaining strength between worker and employer has therefore given way to two further justifications for labour law. First, by linking labour law closely to functioning of 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 traditional social objectives of labour law gives way to a realisation of social justice through repulsion of 'economic logic of 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 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 employment relationship. The paper draws upon works by Philip Pettit and Frank Lovett in field of civic republican political theory to explore whether employment relationship should be treated as one of 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 common law and shaped by domestic and international legislation which are concerned with minimisation of domination exerted by an employer over an employee.