Evaluating the Reflexive Turn in Labour Law

Abstract

The aim of this chapter is to interrogate what, if anything, is gained by reformulating labour law as a field of reflexive law and governance. The tradition of Oxford labour law scholarship stretching back to Kahn-Freund has not of course typically deployed the terminology of ‘reflexive law’, though it has been preoccupied—as reflexive law scholarship is—with labour law’s regulatory techniques. At its simplest, the reflexive turn in labour law is an attempt to speak to concerns about the effectiveness of the traditional regulatory techniques of labour legislation and administrative regulation in the context of changes in the institutional landscape, and changes to regulatory objectives in the areas of industrial relations and social policy. What has changed since the heyday of, respectively, collective laissez-faire and statutory intervention, as the dominant techniques of labour market regulation, and how convincing is ‘reflexive law’ in its attempt to explain or rationalise the new forms of governance or law-making within the UK labour market, and more generally with reference to the social and employment policy of the European Union (EU)? This requires a three-fold investigation: first is reflexive law descriptively an appropriate means by which to understand the range of regulatory techniques being adopted across the field of employment and industrial relations: how accurate a description of regulatory change are theories of reflexive law, or related discourses of ‘responsive’, ‘new’ or ‘experimentalist’ governance? Second, is it right, normatively, to adopt or advocate a reflexive approach to regulation, to the extent that such an approach may well eschew a substantive content for labour law? Can a reflexive approach be inherently ‘neutral’ as to (regulatory or labour market) outcomes? What of those criticisms of reflexive regulation which contend that the rise of reflexive (labour) law runs in parallel to and indeed reinforces the neoliberal turn in economic policy making? Third, is there empirical evidence to show that a reflexive approach to regulation works in practice? Is it true to claim—as theorists of reflexive law, responsive regulation or new governance do—that regulatory interventions in the labour market are more likely to be successful in achieving their objectives if they avoid direct prescription of substantive social or distributive outcomes, and instead engage in what one might call ‘second-order’ regulation by creating frameworks within which social actors such as employers can negotiate?