Industrial Relations & Labour Law:

Is there a Disciplinary Divide?

Andrew Frazer
Faculty of Law
University of Wollongong

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Paradigms of Legal Scholarship

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The traditional paradigm

• doctrinal (black letter)

• Internal orientation

John Baldwin and Gwynn Davis:

"The legal scholar who operates in the common law
tradition is primarily interested not in the social policy
of the law, or the translation of that policy into
effective practice, but rather in the coherence and
logic of legal argument applied to a given set of
facts."
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Traditional methodology

• ‘finding the law’

Enid Campbell:
"Legal research entails discovery of authoritative
sources of laws in force at particular points of time,
and interpretation of those sources.”

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Doctrinal approach
Law as autonomous
– Law is sufficiently described by its own sources
– Distinctive (pure) legal topics
– Distinctive method of legal reasoning
Normative orientation
Edward L Rubin: ‘prescriptive voice’
Legal scholars ‘are not trying to describe the causes of
observed phenomena, but to evaluate a series of events,
to express values, and to prescribe alternatives.’

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“Internal” v “External” approaches to law

External: Law in context

• Operation and effects of legal rules
• Social and political environment
• Law not completely autonomous
• Social science data relevant to operation of
legal system
• But legal scholars still focused on doctrine

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Empirical research in law

• Increasing interest in operation and effects of

law
• But lack of empirical research skills
• Most empirical research by scholars from
other disciplines

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Labour Law in Australia

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Labour law: the traditional paradigm

• Formal focus :
– employment contract & arbitration system

• Interaction with Industrial Relations

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Labour law works to 1985 (Bischoff et al)

category %
System: C&A 40
Terms / condns (wage fixing) 18
organisations 9
Empl relnship 9
Health & safety 8
Industrial conflict 7

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Labour law publications 1956-85
(Mitchell)

category %

IR structures / systems 55
(arbitration)
Empl relationship 14

Organisations (TUs) 15

Industrial conflict 7

Health and safety 5

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Traditional paradigm: areas of interest

• Limits of the arbitration system

– Constitution, legislation, Cmmn’s discretion
• Practical issues in contract of employment
– status, duties, dismissal
• “Lawyers’ law”
– Legal regulation of trade unions
– Industrial action and the law
• Jurisprudence of the tribunals
– Development of norms
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Industrial Relations and Law
• A pluralist, state ‘decentred’ approach to
regulation
• Concerned with rules, formal and informal
• But narrow view of law
– As framework / environment for parties
– As an input / tool
– As a site for contest: courts, tribunals

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Law as Regulation

• Law and Labour Market Regulation

• Meeting ground for labour law / IR
• Broader scope - beyond empl relationship
• Wider range of regulatory influences
– Though still largely state-centred
– Focused on formal legal processes

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An Alternative Approach to Law

Sociology of Law /
Socio-Legal Studies

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The Sociology of Law

Eugen Ehrlich
Fundamental Principles of the Sociology of Law
1913 (trans 1937)

 Law is not socially autonomous

 Law is effective only as social norms
“the enforceable contract does not rule the world to
the extent that it is being enforced by the authorities,
but to the extent that it has become a rule of conduct.”

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Ehrlich
 Law is not the exclusive product of the state
- Legal pluralism
- Organisations develop their own “inner order of
the association”

 Legal institutions are social institutions

- Courts decide by “norms for decision”
- concretised into “technical legal propositions”
- But these are never directly applied in practice

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Modern Sociology of Law / Socio-Legal
Studies
Cotterrell:
1. Law is irreducibly social
Law is “an aspect of social relationships in general”
2. Knowledge of law is empirically grounded
“based on observation of the diversity and detail” of
“actual historical patterns (not abstract relations)
3. Study of law is systematic
from specific to general: “assess the significance of
particularities in a wider perspective”

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Postulates of Socio-Legal Studies [?]
• Law is part of society
– Legal rules are social products
• Law operates through social norms
– No independent legitimation effect
• Legally derived norms operate in specific contexts
– “semi-autononomous social field” (Moore)
• Legal institutions are sites of particular social
relations
– Courts etc influenced by economy & polity
• Development of legal rules is a social practice
carried out by a technocratic elite

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Scope of sociology of law research
 Effectiveness of law in controlling behaviour
– law and social control
 Influence of legal change on society
– impact studies
 Effectiveness of legal procedures - courts etc
– legal process
 Effect of social change on law
– responsiveness
 Law’s effect on social inequality

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Sociological approaches to law

(Banakar)

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A sociology of labour law
Hugo Sinzheimer
Otto Kahn-Freund
• Historical and comparative analysis
• Descriptive account of norms regulating actual
behaviour - empirical
• Critical analysis of relationship between formal
rules and social practices - gap
• Theoretical synthesis - material foundations of
legal ideology
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Scope for development of law as
regulation
• Social institutionalist approach
– effect through social embeddedness

• Pluralism
– ‘deprivileging’ law
– focus on social norms

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Examples of sociological approach to
labour law

Australia at work project

(WRC, Sydney)
– “the nature of the lived reality of
employment contracts”
– workers’ knowledge & perception of the
legal instruments governing them

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Fidelity at the workplace
• Implied duty under contract of employment
– use of employer’s property
– conflicts of interest
• business opportunities
• secret profits
• Employer policies
• Training
• Workplace culture
• Social norms - moral values
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