1 Industrial Relations & Labour Law: Is there a Disciplinary Divide? Andrew Frazer Faculty of Law University of Wollongong

2 Paradigms of Legal Scholarship

3 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."

4 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.”

5 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.’

6 “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

7 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

8 Labour Law in Australia

9 Labour law: the traditional paradigm Formal focus : – employment contract & arbitration system Interaction with Industrial Relations

10 Labour law works to 1985 (Bischoff et al) category% System: C&A40 Terms / condns (wage fixing)18 organisations 9 Empl relnship 9 Health & safety 8 Industrial conflict 7

11 Labour law publications (Mitchell) category% IR structures / systems (arbitration) 55 Empl relationship14 Organisations (TUs)15 Industrial conflict 7 Health and safety 5

12 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

13 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

14 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

15 An Alternative Approach to Law Sociology of Law / Socio-Legal Studies

16 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.”

17 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

18 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”

19 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

20 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

21 Sociological approaches to law (Banakar)

22 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

23 Scope for development of law as regulation Social institutionalist approach –effect through social embeddedness Pluralism –‘deprivileging’ law –focus on social norms

24 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

25 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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