Labour Law and Social Justice: New Beginnings

‘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.’i

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
Pashukanisii – 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 Kay & Mott, dub
‘administration’.iii 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 state
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:
 Intensification of managerial prerogative to enforce numerical and functional
flexibility: under the reforms, ‘[e]mployers will be given more flexibility to negotiate
pay and conditions with their workers while reducing the costs of firing staff.’iv Similarly,
certain standards and matters previously regulated by law will now be the object of
negotiation between labour and management.v
 Hostility to trade unions: the scheme envisages a reduction in the de facto right of union
shop stewards in negotiations involving businesses employing less than twenty workers.vi
Provision is also made for a new form of workplace representative unit, a ‘social and
economic committee’, which need not have some manner of union presence before
engaging in negotiations with management. vii
 Precarisation of work: Willsher notes that part of the rationale of the decrees is to
‘make it easier for firms to hire and fire, and … end the jobs-for-life culture that French
ministers say is a brake on economic growth.’viii As my book makes clear, the notion of a
job for life, and the standard employment model with which it is often bound up, was a
central element of the Fordist labour law regime, and its usurpation is a key moment in
the making of a liberal-productivist labour market.
 Breaking the institutionalised links binding the workforce: the aforementioned
expansion of the objects of negotiation, along with potentially degraded protections for
workers in small businesses, risks increasing polarity in terms of wages and conditions in
the workforce. This is a necessary, as opposed to accidental, feature of liberal-
productivism, and sees the Fordist transmission belt between the industrially strong and
the industrially weak severed.
 Repositioning of competition as a structural principle: importantly, the Macron
reforms suggest that the primary purpose of labour law is not the protection of workers
and the amelioration of differentials in bargaining power between labour and capital.
Instead, competition and efficiency improvements are the raison d'être. According to the
French government, the decrees will help solve mass unemployment, repair the country
and generally ‘liberate’ the energy of the French people. ix Against the backdrop of
Regulation Theory and Australian Capitalism, Macron’s statement that France will be
‘turning the page on three decades of inefficiency’x says more than it intends to and
assumes a multi-layered meaning.
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.

i
The Internationale (adaptation of Charles H. Kerr translation from the original),
https://www.marxists.org/history/ussr/sounds/lyrics/international.htm.
ii
See, for example: Evgeny B. Pashukanis, Law and Marxism: A General Theory, trans. Barbara Einhorn (London:
Ink Links, 1978).
iii
Geoffrey Kay and James Mott, Political Order and the Law of Labour (London: Macmillan Press, 1982), 131-35.
iv
Angelique Chrisafis, ‘Macron takes a page from Trump to change France’s labour laws’, The Guardian, 23
September 2017, https://www.theguardian.com/world/2017/sep/22/macron-takes-page-from-trump-change-france-
labour-laws.
v
Pauline Block, ‘What is Emmanuel Macron’s labour reform and why are people so angry about it?’,
NewStatesman, 11 September 2017, https://www.newstatesman.com/world/europe/2017/09/what-emmanuel-
macrons-labour-reform-and-why-are-people-so-angry-about-it.
vi
Ibid.
vii
Ibid.
viii
Kim Willsher, ‘Macron government launches overhaul of France’s labour laws’, The Guardian, 1 September
2017, https://www.theguardian.com/world/2017/aug/31/france-reveals-measures-to-overhaul-working-life.
ix
Ibid.
x
Ibid.