Revising the Roles of Master and Servant: A Theory of Work Law

Abstract

In this article, I critically examine the claim that work law is best conceived as a subspecies of contract law, arguing that this characterization is neither descriptively nor normatively instructive. Rather than understanding work law as a set of restraints on freedom of contract, we should see it as creating and defining special relationships, much like the codified definitions of marriages and business partnerships. I trace the development of work relationships through the common law of “master and servant” and their more recent statutory modification. I argue that the history and present form of work law are not consistent with the contract-centered view of work law as “interfering” with an otherwise free labor market. In addition, I set the stage for a future research project in which I will argue that since work relationships permit employers to exercise authority over workers, a just work law would narrowly circumscribe employers’ authority in order to achieve work law’s justifiable aims while minimizing overreaching by employers.