In recent years, a debate has raged among scholars of labour law regarding the nature and scope of the discipline today, in an era when so many of the premises upon which labour law was originally constructed and theorised no longer hold true.[1] Very significant, and ongoing, changes to the organisation and regulation of working relations raise questions not only of desirable amendments to public policy and applicable legal rules consequent upon those changes, but, even more fundamentally, of how best to approach the study of the field. Which concepts, methods, and paradigms should we adopt now, if the old ones are no longer appropriate?
In a monograph published in 2014 – The Labour Constitution: the Enduring Idea of Labour Law (Oxford University Press) – I considered several different approaches to the study of labour law, including those of the German Jewish scholars, Hugo Sinzheimer (1875-1945) and Otto Kahn-Freund (1900-1979), both widely regarded as founding fathers of the 
discipline.[2] The main argument of the book was that Sinzheimer’s notion of the Arbeitsverfassung, or labour constitution, continued even today to provide a useful framework for the analysis of labour law. Understood in accordance with Sinzheimer’s definition, the idea of the labour constitution was of enduring utility because of the way in which it suggested both a particular field of enquiry, and a particular set of questions to be asked about that field. It drew attention, especially, to the question of the capacity of labour laws and labour market institutions to introduce elements of redistributive democracy to the economy, furnishing workers with voice and with a means to secure for themselves improved terms and conditions. It highlighted, too, to the question of the role of the state in industrial relations, and of the nature of the relationship, more broadly, between the state, the trade unions and the employers’ associations. In comparison to approaches to the study of labour law that were closely focused on labour markets and questions of labour market functioning, a labour constitution framing allowed, I argued, for full account to be taken of conflicts of interest in the world of work, and of the often highly politically contentious nature of legal regulation. As such, the key advantage of the labour constitution as a framework for analysis was that it turned the spotlight squarely on questions of power and influence – economic power, political power, social power – and on the myriad ways in which laws and legal frameworks constitute, reinforce, and limit such power.
Since 2014, I have built upon this earlier work to consider the labour constitution more specifically as a tool for the comparative analysis of the regulation of working relations.[3] Observing the way in which legal rules that are broadly protective of the worker have been weakened in recent decades, or repealed, or made more difficult to enforce; how, at the same time, trade union membership has fallen very dramatically, together with the coverage of collective agreements, I have argued that the study of labour law today ought to begin from a focus on the contract for work as the key legal institution in the field. In recognition of trends towards the informalization and commercialization of working relations, I define the ‘contract for work’ broadly to include not only contracts of employment, strictly speaking, but also contracts for zero-hours, casual, agency work and self-employment. And I suggest that we understand the act of contracting for work to have economic, social and legal dimensions: to be likely economically motivated, in other words, but at the same time shaped in a wide variety of ways by understandings of social norms, practices, statuses, and applicable legal rules. Even in an era of largely ‘deregulated’ labour markets, laws and social norms influence contracting behaviour very significantly: conferring, and placing limits on, contractual freedoms; defining remedies in case of breach; shaping actors’ understandings of what is ‘normal’ or ‘fair’ in a given situation; encouraging the design of avoidance strategies to take an agreement outside of the scope of application of particular rules. More fundamentally, law constructs or reinforces power relations within the economy by assigning rights to property to some and not to others.
With these points in mind, I propose the labour constitution as a tool to map the various contexts – or regulated spaces – within which contracting for work proceeds: a particular workplace, company, sector, locality and/or jurisdiction. To do so, I draw not so much on Sinzheimer’s as on Max Weber’s use of the notion of the labour constitution. This figured in early work by Weber on agricultural labour relations in the eastern part of Germany: east of the river Elbe.[4] His aim was to identify the consequences for agricultural labour of the capitalist ‘rationalization’ of agriculture. How had societies organized labour-intensive agricultural production, especially in the face of inevitable seasonal fluctuations in labour requirements, and how had this changed over time? At the time of writing, the term ‘labour constitution’ was commonly used by political economists to indicate the historically-given ensemble of conditions – social, economic, political, legal – governing the relations of workers to their employers and to other parties.[5] In Weber’s hands, it became an ideal type: a logically coherent statement of the characteristic properties of a particular regime of labour relations, or ‘system of social stratification’.[6] His method, in his study of agriculture in the east, was to specify and compare two successive labour constitutions, the ‘patriarchal’ and the ‘capitalist’. The former was characterized by the personal domination of numerous strata of dependent labour by a master who was ‘not a simple employer, but rather a political autocrat’; by wage forms based on share-rights – use of plots of land, threshing shares, grazing rights – and, consequently, by a marked degree of shared interests between masters and labourers.[7] The latter emerged as a result of the ‘proletarianization’ of agrarian labour, and the polarization of what was now class conflict between the owners of the land and their workers.
Whereas Weber developed these ideal types so as to understand changes over time in the organisation of labour relations in a single location, it is easy to see how his method could be adapted so as to compare different workplaces, sectors or jurisdictions as sites within which contracting for work proceeds. Drawing comparisons between different sites across time could aid the construction of hypotheses, or the drawing of conclusions, regarding the influence of particular laws and institutions on contracting behaviour. Sketches of the different workplace or sectoral labour constitutions could then usefully be supplemented with empirical analysis of the meaning which the contractual relations had for the contracting parties themselves. Does the worker understand herself to be contracting for work? Does she understand herself therefore to be owed a minimum wage and other employment rights? Alternatively, does she regard herself as truly self-employed? Which aspects of her working relationship does she object to and why? What account of prevailing legal rules has been taken by the drafter of the contract for work, and to what end? Etc.
If we define the labour constitution with Weber, as the complex of rules, institutions, social norms, and social statuses etc which together determine the possibility of contracting for work, it remains to be explained which elements of the particular context should be regarded as relevant, and as such included in a particular labour constitution, and which left out.[8] What are the ‘applicable rules’, for example, in any given instance of contracting for work: employment standards of course, but what about social welfare rules, immigration law, family law, tax and financial regulations? Is the ethnicity of the worker important, her gender, education, social class, nationality? Does it matter that the employing organisation is small, medium-sized or large? In Sinzheimer’s work, the labour constitution figured as the body of law which fulfilled the function of democratizing the economy, and its scope consisted, accordingly, of those laws which accorded rights to collectivized labour to participate on a parity basis with capital in the regulation of working relationships, workplaces, and – in aspiration, at least – the economy as a whole.[9] Our Weber-inspired definition of the labour constitution is less obviously determinative, and potentially much broader, than Sinzheimer’s. Guidance may be drawn here, however, not only from Weber’s own examples of agricultural labour constitutions, but from comments he made later regarding methodology and ideal types. Although these were to be used primarily for heuristic and expository purposes they were not ever entirely ‘value free’, he explained: selection of the particular characteristics or factors to be accentuated in an ideal type was a preliminary and inevitable step, in Weber’s opinion, and should proceed precisely with reference to ‘value-ideas’.[10] Selection of value-ideas or orientations in any given study should depend, in turn, on the nature of the research questions to be addressed.[11]
In October 2018, a five year project was launched, funded by the European Research Council, on Work on Demand: Contracting for Work in a Changing Economy. Together with a team of three postdoctoral researchers – Alessio Bertolini, Eleanor Kirk, and Gregoris Ioannou – I have since been further developing and utilizing the method outlined above to study long term trends towards more insecure and low paid (‘indecent’) work across the European Union. In the first instance, we are focusing on the hospitality and oil and gas sectors, on human resource management, and on platform-mediated ‘gig’ work. Fieldwork is currently being undertaken in Greece, Italy and the UK.
Posted by Professor Ruth Dukes (Glasgow)
[1] See eg G Davidov and B Langille (eds), The Idea of Labour Law (Oxford 2011).
[2] For commentary see ‘Book Symposium: Ruth Dukes, The Labour Constitution’ (2018) 9(2) Jurisprudence 394-423.
[3] R Dukes, ‘The Economic Sociology of Labour Law’ (2019), forthcoming.
[4] See especially M. Weber, Verhältnisse der Landarbeiter im ostelbischen Deutschland (1892); M. Weber ‘Entwickelungstendenzen in der Lage der ostelbischen Landarbeiter’, (1894) 77 Preussische Jahrbücher reprinted in M. Weber, Gesammelte Aufsätze zur Sozial- und Wirtschaftsgeschichte (1924) 498.
[5] L. Scaff, ‘Weber before Weberian Sociology’ (1984) 35(2) British Journal of Sociology 190, p. 200.
[6] Scaff, id., p. 201.
[7] Weber, ‘Entwickelungstendenzen in der Lage der ostelbischen Landarbeiter’.
[8] Weber defined constitution, ‘in the sociological sense’, as ‘the modus of distribution of power which determines the possibility of regulating social action’: M. Weber, Economy and Society (1978), 330.
[9] Dukes, The Labour Constitution.
[10] There was an ‘insurmountable hiatus between the concept and the real’ which rendered consideration of the totality impossible: M. Weber ‘‘Objectivity’ in Social Science and Social Policy’ in M. Weber, The Methodology of the Social Sciences (1949).
[11] Dukes, ‘The Economic Sociology of Labour Law’.
British Association of Comparative Law 