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Critical Labour Law: The American Contribution Author(s): Joanne Conaghan Source: Journal of Law and Society, Vol. 14, No. 3 (Autumn, 1987), pp. 334-352 Published by: Wiley on behalf of Cardiff University Stable URL: http://www.jstor.org/stable/1410189 . Accessed: 28/02/2014 10:35
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JOURNAL OF LAW AND SOCIETY VOLUME 14, NUMBER 3, AUTUMN 1987

0263-323X$3.00

Critical Labour Law: The American Contribution

JOANNE CONAGHAN* The American Critical Legal Studies Movement should need no introduction for it is by now a well-established field of scholarship spanning almost every conceivable area of contemporary legal study and finding for itself considerable space and attention in leading law journals in the United States of America. My object here is not to add to the ever-increasing list of general accounts and assessments of critical legal scholarship' but to explore in some detail its method, objects, and achievements in the particular area of labour law. I choose labour law mainly because a considerable body of critical work has developed in this area2 but also because I hope, by exploring the contours of the contribution from the United States of America, to draw out the strengths and weaknesses of the critical approach and, by doing so, to suggest its value - if any - in the context of contemporary British labour law. One word of caution must be given in relation to the grouping of various writers together under the general title of'critical legal theorists'. By this I do not mean to suggest any absolute homogeneity; indeed, there are substantial differences between the various writers considered as to the nature of the critique employed and the conclusions drawn, differences which I hope this study will reveal. By way of introduction, however, it is necessary to set the scene by placing the debate within the context of contemporary labour law and labour relations theory in the United States of America. INTRODUCTION TO LABOUR LAW IN THE UNITED STATES OF AMERICA Any account of labour law in the United States of America must give prominence to the passing and application of the National Labour Relations Act 1935 (the Wagner Act). This controversial Act - a product of the New Deal legislative response to the Depression - considerably distinguished the American approach to collective bargaining from the British, at least until recent years. For while the policy of the Wagner Act was to promote the development of collective bargaining directly by the creation of new legal rights and duties in workplace relations, such legal intervention in the British context is usually regarded as a phenomenon of the 1970s; before that collective bargaining in Britain was almost wholly determined by economic strength and not by legal rights.3
*

Universityof Kent, Canterbury,Kent CT2 7NY, England.

334

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The legislative strategy for encouraging collective bargaining was to increase trade union power by granting to employees a number of legal rights:
Employees shall have the right to self-organisation, to form, join or assist labour organisations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid and protection.4

The overtly pro-union legislation was received with considerable protest and resentment by employers, some of whom launched an immediate campaign of disobedience against the Act at least until its constitutionality was confirmed by the Supreme Court in 1937.5 Moreover, initially they had good reason to fear the effects of the Act: within about ten years the number of unionised employees increased from three to fifteen million, totalling thirty-five per cent of the (non-agrarian) workforce. But the growth of trade unionism was shortlived and, in the view of critical theorists, the radical potential of the Wagner Act - if it existed - never became a reality. In the United States of America today no more than about twenty per cent of the workforce are unionised. Moreover, many of the rights originally established by the 1935 Act have been considerably restricted either by statute or by judicial doctrine.6 In part, the critical legal studies approach has been an attempt to explain the apparent failure of law to promote collective bargaining by highlighting the ways in which law restricts worker participation in the bargaining process while at the same time purporting to encourage it. But the main thrust of the critical legal scholars' attack cuts much deeper: primarily their concern is with showing how the collective bargaining system and the ideology of 'liberal legalism' as a whole both promote and legitimate worker subordination:
... the ultimate mission of collective bargaining law is to promote an ideology and evolve a set of institutions that legitimate and reinforce socially unnecessary hierarchy in the workplace.7

LIBERALISM AND INDUSTRIAL PLURALISM There is no doubt that liberalism is the general target of the critical legal scholars' critique. What is more problematic is what the term 'liberalism' implies for critical legal scholars. As Ed Sparer has pointed out, liberalism has on occasion been defined so broadly by critical legal theorists as to incorporate almost all aspects of western culture and political life.8 At the same time, the term is commonly used - at least in the United States of America - as synonymous with 'left' as opposed to 'conservative' or 'right'. Karl Klare, one of the critical movement's leading protagonists, has expressly linked the notion to the "classical liberal political tradition" of Hobbes, Locke, and Hume,9 asserting that this philosophical tradition dominates mainstream legal thinking and therefore it is this perspective which critical legal scholars seek to critique. Within this frame of reference Klare and other critical labour of collective bargaining, a key requirement lawyers develop a 'liberal' theory1'0 of which involves the acceptance of a pluralist frame of reference.1' This pluralist perspective on labour law in the United States of America, 335

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characterised by Katherine Stone as "industrial pluralism" constitutes, she has asserted, "a single unified vision" of collective bargaining which pervades post-war labour law in the U.S.A.:
This vision is both a definition of what collective bargaining is, and a vision of the ideal relationship between unions and management in society as a whole. It has become so pervasive in all thinking and writing about labour relations that, like the ambient air, it is almost invisible.12

Both Stone and other labour lawyers engaged in the critical enterprise have built an intellectual construct of the "vision" by drawing upon the writing of leading post-war American theorists.'3 The basic tenets of this construct include: (i) a view of collective bargaining as a form of democratic selfgovernment within the workplace; (ii) a view of collective bargaining as a form of private ordering as opposed to public regulation; (iii) implicit in (ii)- a view of law as playing a neutral and facilitative role in relation to collective bargaining; and (iv) linking the ideas embodied above, a view of the collective agreement as a binding contract between equal parties enforceable in law. The critical legal scholars have drawn out the premises upon which these view are based. For example, as Klare has pointed out, the assumption underlying the legislative analogy is a view of the workplace as a place to be governed and controlled.'4 Likewise, Stone has demonstrated how the "joint sovereignty" of the workplace shared by management and unions is illusory in that it gives way to "retained management rights". The realm of joint sovereignty is no more than "a miniature island of democracy in a large autocratic ocean".'5 The critical legal scholars have also pointed out that a view of law as neutral and facilitative is dependent on a distinction between the 'private' ordering of labour relations by the parties themselves and the 'public' regulations of that ordering by law. The critical legal project has sought to challenge the coherence of this distinction and, by so doing, to reveal the law's far from neutral role in labour relations. This involves among other things a rejection of contractualism - the unifying link underlying the pluralist vision. For, while pluralism views the 'contract' between management and labour as embodying the values of democracy, participation, and consent, a critical perspective exposes it as a legal mechanism designed to control rather than facilitate industrial relations.'6 Let us explore this critical perspective more fully. THE CRITICAL APPROACH TO LABOUR LAW The attack of critical legal scholars on the liberal account of the role of law in industrial relations has taken place on two broad fronts. First, it has been alleged that liberal theory fails to meet its own ends: industrial democracy is not realised by collective bargaining. Secondly, it has been argued that not only does liberal theory fail to meet its own ends, but it also embodies and conceals values and assumptions which undermine these apparent ends. In other words, the liberal theory of collective bargaining operates as an ideology which prevents people from either recognising the industrial world as it is or 336

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envisaging alternative work structures. To this extent the critical legal theorists rely considerably on the Gramscian notion of hegemony whereby the oppressed are induced to 'consent' to their own exploitation because they see it as part of the common-sense nature of their existence. In the context of labour relations, hierarchy and managerial authority are regarded as natural and inevitable rather than socially constructed, and the operation of law encourages this belief. Both approaches outlined above appear to various degrees in the work of the critical labour law theorists. Staughton Lynd, for example, employed the first approach when he argued that the collective contract between management and labour was not a 'fair' one because the law failed to guarantee equality of bargaining power although purporting to do so." Proponents of the second approach, in contrast, have focused both on highlighting instances of liberal incoherence and contradiction'8 and on articulating the conservative values which liberal thought conceals."9 This is not to say that either approach is pursued exclusively by different writers or that the line between the two approaches is easy to draw. Stone, for example, has consciously used both approaches.20 arguing on the one hand that liberal theory fails to deliver the goods promised and, on the other hand, that liberal theory is incoherent anyway. For purposes of present analysis, however, I will consider the two approaches separately. THE LIBERAL THEORY OF COLLECTIVE BARGAINING FAILS TO ACHIEVE ITS OWN ENDS The method of critical legal scholars here has involved identifying the ends of labour law and demonstrating how the legal process fails to meet them. So, for example, Stone has identified the "end" of "joint sovereignty" and then shown how in reality collective bargaining law does not achieve it.2' Likewise, Lynd has emphasised the importance of the worker rights granted by the National Labour Relations Act and then has argued that these rights have been undermined in practice:the gap between "paper" rights and "real" rights has thereby been exposed.22 Lynd has applied this critical method to the socalled 'quid pro quo' doctrine which characterises the collective contract.23 According to this doctrine, "the workers relinquish the right to strike in exchange for management's promise to submit contract grievances to arbitration".24Thus, industrial peace is promoted by avoiding strike action in a fair exchange between equals. In reality, however, as Lynd has pointed out, the exchange is far from fair for while workers generally give up the right to strike over all grievances, management's obligation to arbitrate is usually limited to grievances governed by the collective contract. Nor can the exchange be characterised as one between equals, for although labour law purports to redress the inequality of bargaining power between management and labour, in fact it actually increases it by maintaining a distinction in law betwen 'mandatory' and 'permissive' subjects for bargaining purposes which reinforces rather than limits managerial power.25 Lynd has therefore 337

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concluded that the 'quid pro quo' doctrine as it stands conceals "a fundamental unfairness in American labor relations"26 which the law should not permit. As an account of the failure of law to live up to its ideals, Lynd's analysis is uncontroversially accurate. However, his approach was hedged with limitations. First and most obviously, any account which seeks to identify ends is vulnerable in that the ends themselves are not always easy to ascertain and may be challenged. The controversial nature of the ends of the Wagner Act, which Lynd himself has admitted,27 constitutes a good example. Likewise, in the context of British labour law, evaluations of the operation and success of the Unfair Dismissal and Redundancy Payment provisions have been similarly complicated by an apparent confusion of aims.28 Secondly, Lynd's approach has tended to overemphasise the importance of law by suggesting that the removal of legal obstacles or the addition of legal protection would resolve the situation. For example, Lynd has suggested that the 'quid pro quo' doctrine can be utilised in the fight against unilaterally imposed investment decisions by "expanding the quid" or "restricting the quo" without telling us exactly how law, if at all, could do this.29 Certainly Lynd's analysis, while exposing the inadequacy of present legal remedies in the context of management investment decisions, has not even begun to acknowledge the limits of law, either tactically or theoretically. The result, then, is not a critique of liberal theory but an attempt to realise it.30 As such it can hardly be regarded as in any way new - however useful. It seems, then, that if anything original is to emerge from the critical study of labour law it must come from the second approach: the study of labour law as ideology. LABOUR LAW AS IDEOLOGY 1. Examples of Ideology Critical legal scholars' analysis of labour law as ideology has relied on two closely-related projects. First, the critical theorists have taken the ends analysis of liberal theory (discussed above) a step further by exploring its underlying assumptions. According to Klare "the endeavour is to uncover the moral and political vision embedded in the doctrines" thus revealing "a powerfully integrated set of beliefs, values and assumptions" which reinforce "the dominant institutions and hegemonic culture of our society"."3 Secondly, the theorists have sought to demonstrate the incoherence of labour law and the contradictions which it relies on and vainly attempts to resolve. Such incoherence reveals both the indeterminate nature of labour law and its manipulability. The critical labour law literature is rich with applications of both these techniques, but for present purposes I select just a few examples to demonstrate both the potential of critical study of labour law and its problematic nature. 338

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(a) Hidden Meanings Klare's work is dominated by explorations of the hidden messages in liberal labour law, an interesting example of which is his impressive analysis of the images of work and workers governing the Supreme Court decision in the notorious Yeshivacase.32 In this case the Supreme Court decided that faculty members at a private university were not "employees" for the purposes of the National Labor Relations Act and, therefore, not entitled to its protection. The court argued that the degree of control over the nature and conditions of work enjoyed by academics was more consistent with the role of management, despite evidence that very real differences of interest existed between the faculty members and the university authorities (for example, as to pay and job security). In the course of deciding that faculty members were not "employees", Klare argued that "[t]heYeshiva decision speaks volumes about the image of work and workers embedded in American labor law".33 He then showed how the picture of workplace relations conjured up by Yeshivawas one of hierarchy and "top-down command" while the image projected of workers was one of powerless, non-creative, self-interested individuals. By revealing such a conception of work and workers and excluding academics from it by virtue of their very real participation in workplace governance, Klare contended that the Supreme Court implicitly admitted that collective bargaining law presupposes and promotes management hierarchy and employee subordination, despite its apparent commitment to industrial democracy.34 Moreover, Klare's approach has not been limited to an expose of the hidden prejudices which motivate a judge's decision in a particular instance. By uncovering unarticulated values, Klare constructed an "inner logic of collective bargaining"35which explains not just individual decisions but the long-term development of liberal legal doctrine.36 A good example of this technique is his analysis of the history of the labour injunction as a tactic to enjoin strikes.37 Briefly, the legal background is as follows. Until the New Deal legislation of the 1930s the labour injunction was a frequently-used instrument in the suppression of strike action. Its removal from the federal sphere by the Norris-La-Gardia Act 1932 represented a powerfully symbolic gesture of the law's withdrawal from labour affairs, a gesture which was recognised and confirmed in the post-war era despite the more overtly antilabour tone of the Taff-Hartley Act 1947. In 1970, however, in the famous Boys Market case38 the United States Supreme Court resurrected the labour injunction in order to enjoin a strike in violation of a no-strike clause, overriding the Norris-La-Gardia provisions by an 'accommodation' with the policy of the Taff-Hartley Act. Klare pointed out the incongruity of the labour injunction in a liberal vision which posits the premise of law's externality to labour affairs and examined the justices' attempts to accommodate that vision by emphasising the injunction's role in promoting the sanctity of contract and the primacy of private arbitration. But, as Klare continued, the liberal response fails to explain why the labour injunction re-emerged when it did; why, for example, did the Supreme Court reject its use in previous cases?39 Such an answer, he 339

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argued, could only be gleaned by an exploration of the law's inner logic which reveals that legal repression of labour activities is the inevitable end of liberalism. In the context of the Boys Market case the inevitable result of treating the collective agreement as a highly formal binding contract is the need for law to intervene directly to enforce it, despite the fact that the purpose of the contractual form is to keep the law out and facilitate the ordering of industrial relations by the parties themselves. In his analysis of Boys Market and of Yeshiva Klare has thus identified "a continuity between co-optation and repression that reveal the conservative underpinnings of liberal thought".40 As the above account shows, the ideological impact of labour law relies in part on the apparently unobtrusive nature of its underlying values, according to Atleson "values which are all the more pervasive because of their unarticulated quality",41but also on the attractiveness of the values it appears to embrace. Herein lies the significance of the contractual interpretation of the collective agreement which the critical legal theorists have identified as crucial to the pluralist vision. By construing collective negotiation as a legally binding contract, liberal theory highlights both the consensual nature of collective bargaining and the neutrality of law. However, the contention of critical legal scholars is that, while appearing to embrace the value of consent, the contract model actually subverts it by presuming an equality of bargaining power between management and labour which does not exist in practice. Moreover, the neutrality of law is compromised by the fact that the law actually helps to promote that inequality in a number of ways. First, and most importantly, the law inhibits industrial action by restricting the right to strike despite the guarantees explicit in the Wagner Act. Restrictions have been imposed both by subsequent legislation - for example, the outlawing of sympathy action by the Taff-Hartley Act - and through judicially developed doctrine.42 As the critical legal theorists have pointed out, such extensive restrictions undermine the credibility of the pluralist model which regards the right to strike as a necessary prerequisite to effective collective bargaining.43 Secondly, the law has developed an institutional structurewhich, by focusing on the importance of private arbitration and developing a principle of institutional deference to arbitrative methods, promotes industrial peace at the expense of worker rights.44 Thirdly, law promotes inequality between management and unions by restrictingnot just the effectivity of collective negotiation but also its scope. The focus here is on the judicially developed distinction between 'mandatory' and 'permissive' subjects for purposes of collective bargaining. This distinction, it has been argued, not only prevents unions from negotiating on matters which are of most importance to the workforce - for example, investment decisions and plant closings - but by reinforcing and protecting a realm of "management-retained rights" it undermines the "pluralist" principle of joint sovereignty.45 It is for these reasons that Klare has concluded that contract is "the legal form by which organised employees consent to their own domination in the workplace".46 It is the chief ideological instrument of worker co-optation and the ultimate legitimation of liberal collective bargaining. 340

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(b) Instances of Incoherence and Contradiction Another strand of the critical legal project has focused on revealing the incoherent and contradictory nature of liberal labour law. This concern with contradiction characterises the critical legal approach generally, finding perhaps its most articulate expression in R. M. Unger's influential work Knowledge and Politics47 which posited and analysed a model of liberalism built on a series of contradictory dualities between self/other, state/civil society, autonomy/community, public/private. Critical legal scholars have contended that such contradictions are inherent in liberalism and that their ideological power requires their continual reinforcement. The result of this "ever-reviewedeffort to refract the complexities of social life through a basic conceptual prism"4s is an analytical framework which threatens to collapse through its own incoherence. In the context of labour law, the critical legal theorists have placed emphasis both on the contradictory nature of the collective bargaining system as a simultaneous embodiment of both equality and elitism and on the contradictory dualities upon which it relies. Two examples suffice to demonstrate this approach. First, Klare has exposed the boundaries of the public-private distinction in labour law,49 demonstrating both its analytical impotence and its rhetorical significance. He has argued that the distinction between 'public' and 'private' law and between 'public' and 'private' spheres of activity has been employed in legal decisions and scholarship so as to conceal the interventionist and partisan nature of the state's role in labour relations. This perspective has obvious implications for analyses of labour law in terms of 'abstentionism' and 'interventionism'. Likewise, Stone50 has exposed the illusory nature of the distinction between form and substance. She has argued that, by regarding and applying the provisions of the Wagner Act as rules of procedure, the courts have assumed a formal, neutral stance in labour relations which disguises the fact that such a procedural approach considerably limits the extent of worker rights. The distinction between 'form' and 'substance' is illusory because a formal/ procedural approach to labour law has substantive implications and effects. In my view it is an important part of the critical legal project to expose the contingent nature of such distinctions which dominate and delimit debates within labour law. For example, discussion about the 'public interest' in industrial order necessarily presupposes a public/private dichotomy. The distinction has been similarly reproduced in putative attempts to distinguish between 'economic' and 'political' activities - a project which even KahnFreund, an avowed pluralist, dismissed as analytically redundant - but which nevertheless remains a cornerstone of thinking about legitimate labour activity in Britain and the United States of America.51 Likewise, the apparent conflict between individual and collective interests is neatly caught both in the political rhetoric and in the legal provisions surrounding the closed shop in Britain. Because the restrictions on closed shop organisation appear within the framework of the unfair dismissal legislation,52 the law - on its face - suggests a necessary antagonism between individual rights and collective organisation; the interest of individuals in the 341

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strength of the collective is obscured while the apparent individual/collective conflict is reinforced. A critical perspective has demonstrated the contingent nature of such apparently inevitable conflicts and, by doing so, has revealed their ideological power. The critical legal approach to labour law as ideology is undeniably persuasive. However, initial attraction must be tempered by an awareness of the problematic nature of this ideological emphasis: the merits of critical study of labour law must be placed in the context of its failings. 2. Problems with Labour Law as Ideology Critical legal scholars' analysis of labour law as ideology is limited and undermined by three fundamental problems. First, the analysis relies on exposing the contradictions and incoherence within liberal labour law while by no means escaping that charge itself. Secondly, by limiting itself to a study of legal doctrine, the analysis implicitly reinforces what it seeks to deny - the autonomy of law. Thirdly - and in part as a result of the limitations identified above - the critical legal literature on labour law tends to make unsupported claims about the impact of law on the industrial world. (a) Reproducing Contradiction and Incoherence The critical legal writers, while identifying the contradictions within liberal theory, have sometimes failed to escape them themselves. Stone, for example, while emphasising the incoherence of the form/substance dichotomy nevertheless has appealed to it when urging "a substantive interpretation of labour relations".53 Similarly, her proposed remedy for industrial disputes - the shifting of labour relations problems from the private to the public sphere so enabling the workers "to struggle in the arena in which their strength is greatest - the national political arena"54- relies on an unproblematicallyfixed distinction between public and private which contrasts sharply with a theoretical method which seeks to demonstrate the contingency of such distinctions."5 In part this confusion in critical legal writing can be explained as a failure to transcend the reified categories through which liberalism views the world. But, more significantly, it stems from a deeper theoretical ambiguity within critical legal thought about the nature of the contradictions which they seek to identify. It is by no means clear, for example, whether Kennedy's "fundamental contradiction" between self/other is to be regarded as an artificial construct or an insoluble problem of the human condition.56 This ambiguity in turn can be traced to what Hutchinson and Monahan have identified as a disagreement within the critical legal movement "about the If labour law is based on a set pervasiveness of contingency in law and life".'57 of contingent political assumptions about the nature of labour relations, it becomes the task of critical legal theorists to steer a perilous course between reinforcing the contradictions they seek to identify and descending into nihilism. 342

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(b) The Focus on Legal Doctrine A major limitation of critical legal research on labour law has been its almost exclusive attention to legal doctrine abstracted from its social context. This focus reflects the critical legal method generally and its concern with the analysis of legal doctrine with a view to 'decoding' it, that is, to demonstrate how and why law acts as ideology. The approach can take the form of analysing the impact of a particular case (for example, Klare's work on the Boys Market58 and Yeshiva59 decisions) or it can involve a re-examination of a body of legal doctrine (for example, Stone's work on industrial pluralism60 or Atleson's work on the development of the 'subjects' doctrine61). In form, at least, as Munger and Seron have pointed out,62 a piece of critical legal scholarship does not appear to be so very different from a mainstream work. How, then, can their methods be distinguished? Trubek has argued that the distinction turns on the purpose of study. Critical legal scholars focus on legal doctrine to discover what the law does, not what it is. Therefore, "[t]o suggest that somehow Duncan Kennedy and Karl Klare are doing the same thing that Langdell and Willison did is just nuts."63 Trubek has made this distinction to absolve critical legal work from the charge of anti-empiricism but it is nevertheless problematic in part because, on Trubek's own admission, critical legal scholarship has not really embarked on a serious exploration of what the law does, but more particularly because the focus on legal doctrine has made certain assumptions about what the law is - the method itself contains certain hidden messages not made explicit by the critical writers. This is in essence the substance of Munger and Serons' critique.64 In particular they emphasise the limited focus of critical legal scholarship on traditional legal sources - cases, statutes, rules. The resultant limitations are more than apparent in the context of labour law. The critical scholars of labour law undoubtedly suffer from the traditional obsession in the United States of America with the centrality of judicial decision-making - in this instance the decision-making of the Supreme Court. They are, therefore, immediately guilty of the old Realist-identified sin of "Uppercourtitus".65 This narrowness of focus has two important implications. First, it tends to exaggerate law's importance by assuming rather than demonstrating a significant impact on industrial relations. Secondly, it implicitly defines 'law' in very narrow terms. 'Law' is presumed to consist primarily of Supreme Court decisions interspersed with federal statutes, while other aspects of the legal process - the activities of the lower courts, the role of practising lawyers, the importance of grievance procedures, and private arbitration - are neglected. As a result of this assumption of the centrality of certain institutions (appellate courts) and personnel (judges), the focus of the critical attack becomes law in the abstract rather than law in the context of everyday labour relations. For example, in Klare's analysis of Yeshiva66the focus was on the ideological power of internal legal argument abstracted from its actual impact on collective bargaining practice. Charges of irrelevance and marginality 343

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inevitably followed, while the debate generated has tended to collapse into endless wrangling over the use of legal sources.67 Moreover, not only does the exclusive focus on legal doctrine misdirect the debate, more importantly it presupposes a notion of autonomous legal doctrine which is strangely out of keeping with an approach which seeks to demonstrate otherwise. So, for example, Klare's explanation of Boys Market68 is potentially misleading insofar as it suggests that the decision is purely a product of liberal legal logic. Likewise, his attempt to explain Yeshiva69in terms of the repressive legal tendencies underlying the liberal theoretical framework upon which the court relies is deficient in its failure to address the 'external' factors - in this case contemporary economic circumstances - which make such a decision more likely. Klare's concern is to show how legal ideology operates systematically to influence the political choices which judges are required to make in a way which makes such choices appear 'objective' and 'correct'. Part of this project must surely involve not just an expose of the political content of legal doctrine but also some attempt to explain the relationship between law and other forms of social power. Why, for example, does law come to reflect and reinforce particular social values? If law is to be regarded, as Klare has maintained, as part of the "constructed totality"70 of social life, it must not be studied in splendid isolation. The concern of critical legal scholars to avoid the "economism" of"orthodox Marxism"'v should not lead instead to a misplaced focus on legal ideology abstracted from its social context. Finally, the focus of critical legal theorists on legal doctrine has ignored the powerful ideological power of other aspects of the legal process: court procedure, legal practice, and so on. The narrow concept of'law' employed by the critical writers thus leads to a neglect of important ideological sources while at the same time the focus on doctrine alone produces, as Munger and Seron have pointed out, "a body of research that reinforces the very assumption its sets out to demystify, i.e. that doctrine develops autonomously".72 In defence of doctrinal analysis no doubt the critical theorists would rely on some conception of the 'relative autonomy' of law. Indeed, Klare has explicitly relied on this notion in his analysis of the Wagner Act.73 However, it cannot be denied that within the labour law literature the problems associated with relative autonomy and with concepts of legal doctrine and discourse have been largely ignored. (c) The Gap Between Law and Life The expose of hidden values in labour law has often been accompanied by problematic claims about the impact of these values and of law generally. Klare has persistently argued that legal discourse has a significant impact on our way of thinking and that in the context of labour law the 'legal consciousness' developed by judicial decision-making has played an important part in influencing the attitudes and actions of those involved in industrial relations. Klare's approach can usefully be contrasted with the more limited claims of Atleson by looking at the latter's analysis of the values underlying 344

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the 'subjects' doctrine and Klare's response to it.74 While Atleson's project has been simply to reveal the unstated assumptions which motivate legal argument surrounding the 'subjects' doctrine, Klare's enterprise has been much more ambitious. For him:
The social function of significant legal ideas like the management prerogatives doctrine is to induce us to accept a certain view of the possibilities of and constraints upon human freedom, to induce us to believe in the justice, or at least the inevitability of existing institutional forms .... In sum, the purpose of the management prerogative doctrine is to deny us access to knowledge about our past and political imagination about our future.75

As has been pointed out frequently in the context of critical legal studies generally, such claims make an enormous leap from "the realm in which legal ideology is produced, and where it forms the dominant discourse, in courts and law offices, to the realm of wider society".76 This leap involves two particularlycontroversial assumptions. First, it assumes that legal rules have a direct impact on social beliefs and actions - in this context on the attitudes and behaviour of social actors in the industrial world. Secondly, the assumption implicit in much of critical study of labour law is of the application of law as a passive body of workers who automatically internalise its messages, an assumption characterised by Trubek as the "transmission belt model"." So, for example, Klare has argued that the political values embodied in liberal labour law have been internalised by the labour movement, thus legitimating existing industrial order.'78Likewise, Stone has maintained that industrial pluralism creates "an illusion of consent by workers to industrial conditions that legitimate the conditions that result".'79 Such claims about the hegemonic quality of labour law require an exploration which the critical legal scholars have not as yet embarked upon. Empirical evidence is required to support, for example, the assumption that unions are influenced by the ideological content of collective bargaining law. As Trubek has pointed out, the critical study of labour law must move beyond an isolated study of doctrine in order to "investigate the social construction of meaning through law in law firms, board rooms, union halls and on the shop floor".80 Moreover, the need for such empirical evidence is central, not peripheral, to the critical project and therefore should not be relegated to a footnote.81 The transmission of ideology raises theoretical issues also. Critical scholars need to confront and explore the process by which ideology is mediated. This demands the construction of a framework which incorporates both the processes of ideology mediation - including the mass media, popular culture, and public opinion - and the dynamics of the workplace. Attention might be drawn here to alternative analyses of law's role in industrial relations, for example, Harry Arthurs' application of legal pluralist theories to workplace regulation82 - an analysis which has impressively challenged any "transmission belt" explanation of law's impact on labour relations and at the same time opened wide for redefinition the concept of law employed by critical legal scholars. In a recent work83 Klare has acknowledged the force of some of these arguments, but his attempts to answer them have continued to assume rather than demonstrate a hegemonic effect. As Alan Hunt has stated: 345

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Critical scholars assume..,. the effectivity of ideology. But they have not established either an adequate theorization or an empirical demonstration of the connection between legal ideology and the formation of popular consciousness.84

Without attempting to come to terms with these problems the contribution of critical scholars of labour law will represent at most a useful expos6 of the law's lack of neutrality in industrial affairs. Moreover, the making of unsubstantiated claims and the restricted methodology may undermine even this limited contribution. CRITICAL LABOUR LAW AS TRANSFORMATIVE POLITICS: THE INTEGRATION OF THEORY AND PRACTICE An important feature to emerge from the tradition of left scholarship which has evolved since the writings of Karl Marx is the focus on transformative social theory - on theory which is both descriptive and prescriptive, which informs and is informed by social change. This project particularly characterises the work of the Frankfurt School, but the desire to develop normative critique has also found expression in the work of critical legal studies in the United States of America. According to Trubek:
While Critical legal scholars seek to show relationships between the world views embedded in modern legal consciousness and domination in capitalist society, they also want to change that consciousness and those relationships. This is the Criticaldimension in critical legal scholarship.s5

This emphasis on political transformation commits critical legal scholarship not just to the construction and articulation of theory but also to the integration of that theory with practice and movements for social change. To this end critical legal scholars have established close links with the radical lawyers' National Lawyers' Guild. Moreover, some of the critical writers are themselves practising lawyers. However, the idea of political transformation through scholarship requires more than just involving practitioners in the production of theory. The potential for change lies within the theory itself. By focusing on the mystifying role of law, on its ability "to make contingent political and social choices seem inevitable and natural",86 the critical theorists hope, through the project of demystification, to stimulate the momentum for change by revealing the existence of choice. In general, however, the critical legal studies movement has been accused of failing to achieve this goal. A common form of criticism is the expression of vociferous indignation at the critical legal movement's failure to produce any alternative vision of a future society or to prescribepractical policies to assist the political transformation which they seek to promote."8 Others, for example Sparer, have focused their concern on the critical legal method of "trashing", that is, by employing "negative critique" they have argued that such techniques are nihilistic and fail to recognise or promote the radical potential of certain liberal values and concepts - for example, rights.88Given this general concern, to what extent a phoenix has arisen from the ashes of liberal labour law becomes a question worth exploring. 346

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1. Efforts at Reconstruction:Lynd and Stone Attention to the problems of reconstruction in labour law can be found in the work of both Stone and Lynd. In part it is implicit in the reliance on the importance of demonstrating truth and falsity. According to Stone, "the starting point for any new approach is a more accurate description of the industrial world".89 However, both writers have also taken some tentative steps towards the development of practical programmes for social change. For example, Stone has called for the establishment of a "public forum" for the resolution of labour disputes and also argues for a redefinition of the incidence of ownership in order to remedy the structural inequality in the management/ labour relationship. Lynd's suggestions have not been so explicit but they do involve an uneqivocal commitment to the notion of legal rights as a strategy for promoting labour interests 90 and the call for a legal framework which realises rather than subverts the 'quid pro quo' doctrine.91 What distinguishes the approach of Lynd and Stone is their apparently unproblematic reliance on legal solutions to labour problems. Just as they have overemphasised the rhetorical importance of law, so they have also exaggerated its instrumental use. This can be attributed almost entirely to their failure to place law in any social or economic context. For example, in the case of investment decisions or plant closures, it is quite absurd to discuss legal strategy without addressing the economic context in which such decisions take place. Lynd's call for the freedom to strike over plant closures, with its implicit suggestion that this in itself will win for workers the participation in decisionmaking which they demand, seems platitudinous and tame in the light of the year-long miners' strike in Britain where the deciding factor was not the legal freedom to strike but the inevitability of superior strength of management, capital, and state. What the disputes over plants closures reveal - which Lynd and Stone have merely hinted at - is that the effectivity of collective bargaining is in large part dependent upon an expanding economy. In times of economic depression the conflict between capital and labour becomes more apparent and it is due to this as much as to the "incoherence" of liberal theory that inevitably the strains begin to show in the "surface plausibility" of industrial pluralism.92 In other words, economic circumstances quite plainly have a direct effect both on the regulatory and the ideological operation of collective bargaining. Moreover, insofar as a Lynd-Stone type of programme relies on law, it also relies on liberalism:it does not reject liberalism, it merely admonishes it for its failure to deliver the goods promised. For example, Stone has called for a legal framework which will realise the liberal premise of joint sovereignty93 and Lynd has demanded a real "quid pro quo".94 Inevitably, therefore, the contradictions and conflicts within liberal theory also characterise their programme for change.'95 2. Karl Klare and the Buildingof a New Labour Vision Like Stone and Lynd, Klare's programme for social change has involved in part revealing the reality of industrial life which liberal thought conceals. But 347

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Klare has accompanied this process of"deconstruction" with a call for action: "Radical labor activists must help to forge and disseminate an entirely new political vision . 9. ."6 However, Klare's 'ision does not rest on a negation of liberalism alone. He has set out the values which guide his thinking:
My fundamental assumptions include a belief in the feasibility of democratic selfmanagement of the workplace by the workers; a belief in the justice and desirability of giving a dominant voice respecting the organisation and purposes of work and the disposition of the products of labor to those who perform work; a belief that work can and should provide dignity and meaning to life, that it can and should be a mode of expression, development and realisation of the human self; and the belief that the highest aspiration of a democratic culture should be to generate, nurture and encourage in all people the capacity for self-governance and the fulfillment of human potential."97

Put more briefly, Klare is committed to an idea of industrial democracy which rejects the right of capital to govern and control, and to a view of work as a form of self-expression, though acknowledging its 'alienated' nature in capitalist society. Though many of the aspirations expressed in critical legal writing have not been well received by critics (Schwarz, for example, ridiculing the "impossible Eden"98 of critical legal studies and Johnson dismissing the critical legal studies programme as "platitudinous"99) I am nevertheless attracted to Klare's idealism because in the context of the critical study of labour law it provides the sharpest insights, the richest ideas, and the clearest vision to be found. Klare does not share the blind faith of Stone and Lynd in law's emancipatory potential, but emphasises that law, like work, is 'alienated' in capitalist society.100 In other words, Klare has recognised that law is to some extent shaped by capitalist social relations and thus implicitly suggests the need to explore the nature of that interaction. Moreover, he is aware that it is not enough to simply assert a connection between law and other social phenomena and then, on an assumption of relative autonomy, explore the significance of law in isolation from them. Insofar as he has acknowledgedthe limits of theories of relative autonomy, 1o0 the need for empirical evidence of ideological influences,102 and the limits of law in capitalist society,103 Klare has come nearer than any other critical labour law writer to plotting a course for future social change. Such optimism must be expressed with some reservation, however, for while acknowledging the need to widen the scope of the critical project Klare has not yet begun to do so. Thus, the problems which limit the explanatory potential of the critical study of labour law reproduce themselves in the project of reconstruction. In particular, the critical attempt to bring about change by painting a more accurate picture of the industrial world is based on the same assumption about the effectivity of legal ideology which characterises the critical analysis of legal doctrine. If Klare wishes to transform through critique he must give more serious thought as to how his messages can be transmitted. 3. ConcludingNote Not wishing to end on a negative note, I want to emphasise that my exploration of the critical labour law terrain has been an exciting one, though 348

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not without its disappointments. Nor has it lacked the power to inspire. In particular, Klare's work could aid and inform a critical legal approach to the study of labour law in Britain, for it is not misguided to focus on the role of law as ideology, nor is it pointless to ask questions about judicial reasoning and decision-making. More importantly, the critical study of labour law, despite its weaknesses (which are hardly insurmountable) does possess a 'liberating' potential which distinguishes it from much of the 'law in context' work which characterises British labour law literature - for it not only highlights the gap between means and ends, aspiration and actuality, but it also asks questions about why such a gap exists. Indeed, as Trubek has pointed out, it is a key concern of the critical legal project to promote a "New Realism" which recognises that "gaps between legal ideals and legal behaviour, and between legal norms and social structure, are inherent and fundamental features of the life and consciousness of liberal society".104 From this perspective it becomes clear that the liberal project - the attempt to reconcile means and ends - is futile because it is in the very nature of law that such gaps should exist. They are neither "puzzling" nor "anomalous" but part of law's very essence. 05 NOTES AND REFERENCES
SSee, for example, A. Hunt, "The Theory of Critical Legal Studies" (1986) Oxford J. Legal Studies p. 1;Critical Legal Studies Symposium (1984) Stanford Law Rev. p. 1. For a sample of British critical legal scholarship see (1987) 14 J. Law and Society pp. 1-197. 2 The critical labour law literature of the United States of America is extensive. Of necessity, therefore, I have focused mainly though not exclusively on the work of Karl Klare. 3 This statement assumes the traditional 'abstentionist' characterisation of British labour law. Critical labour law problematises such a characterisation. See especially, K. Klare, "The Public-Private Distinction in Labor Law" (1982) University of Pennsylvania Law Rev. p. 358. 4 National Labour Relations Act 1935, 57 (original form). National Labor Relations Board v. Jones & LaughlinSteel Corporation301 U.S. 1 [1937]. For s an account of reactions to the Wagner Act see Klare, "Judicial Deradicalisation of the Wagner Act and the Origins of Modern Legal Consciousness 1937-1941" (1978) 62 Minnesota Law Rev. p. 265. 6 For example, the restrictions on trade union activities imposed by the Taff-Hartley (Amendment) Act 1947. See also the judicially-developed 'subjects' doctrine - N.L.R.B. v. WoosterDiv. of Borg-WarnerCorporation356 U.S. 342 [1958]. 7 K. Klare, "Critical Theory and Labor Relations Law" in The Politics of Law - A Progressive Critique(1982; ed. D. Kairys) p. 65. 8 E. Sparer, "Fundamental Human Rights, Legal Entitlements and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement" (1984) 36 Stanford Law Rev. p. 509 at p. 516. Klare, op. cit., n. 5, p. 276, n. 38. 9 10 The concept of 'liberalism' employed by critical legal scholars is extremely ambiguous and its relationship with 'classical political liberalism' problematic. Moreover, it necessarily excludes much of'neo-liberal' theory - for example, the work of Hayek or Milton Friedman. Klare has stated that the critical target is "sophisticated liberalism", that is, that branch of liberal thinking which accepts and defends collective bargaining as the proper way of conducting industrial relations. (K. Klare, "Labour Law as Ideology: Towards a New Historiography of Collective Bargaining Law" (1981)4 IndustrialRelations Law J. p. 450 at p. 455.)

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SFor a useful account of different perspectives on industrial relations, see Bill Rees, "Frames of Reference and the Public Interest" in Labour Law and the Community(1982; eds. K. W. Wedderburn and W. T. Murphy) p. 129. 12 K. Stone, "The Structure of Post-War Labor Relations" (1982) 11 New York University Rev. Law and Social Change p. 125. Klare has listed Archibald Cox, John Dunlop, and David Feller as characterising the liberal '3 perspective; Klare, op. cit., n. 10, p. 454. 14 Id., pp. 458ff. 15 Stone, op. cit., n. 12, p. 131. 16 The model of pluralism constructed is far from unanimously embraced, not least by 'pluralists' themselves. See, for example, the objections of David Feller and Julius Getman to Stone's work in the Colloquium in (1982) 11 Newi York University Rev. Law and Social Change pp. 136 and 133. S. Lynd, "Investment Decisions and the Quid Pro Quo Myth" (1979) Case Western Res. 17 Law Rev. p. 396. For example, see Klare, op. cit., n. 3. 18 19 For example, see J. Atleson, Valuesand Assumptionsin American Labor Law (1983). 20 K. Stone, "The Post-War Paradigmin American Labor Law" (1981)90 YaleLawJ. p. 1509. 21 Id. 22 S. Lynd, "Government Without Rights: The Labor Law Vision of Archibald Cox" (1981)4 Ind. Rels. Law J. p. 483. 23 Lynd, op. cit., n. 17. 24 Id., p. 396. 25 Supra, n. 6. For a detailed consideration of the 'subjects' doctrine, see J. Atleson, "Management Prerogatives, Plant Closings and the N.L.R.A." (1982) 11 New York UniversityRev. Law and Social Change p. 83. 26 Lynd, op. cit., n. 17, p. 410. 27 See Lynd's account of the Wagner Act's intent: Lynd, op. cit., n. 22, pp. 483ff. 28 See, for example, B. Fryer, "The Myth of the Redundancy Payments Act" (1973) 1 Ind. Law J.p. 1. 29 Lynd, op. cit., n. 17, pp. 423ff. 30 An attempt which cannot succeed because it fails to explain why a gap between 'ideal' and 'actual' exists in the first place. Lynd's strategy is well-intentioned, but short-sighted. 31 Klare, op. cit., n. 7, p. 73. 32 N. L. R. B. v. Yeshiva University444 U.S. 672 [1980]; K. Klare, "The Bitter and the Sweet: Reflections on the Supreme Court's Yeshiva Decision" (1983) Socialist Rev. p. 99. Id., p. 103. 33 Id., pp. Illlff. 34 35 Klare, op. cit., n. 17, pp. 73ff. This is not just a concern of Klare's. Stone has lamented the inability of liberal theory to 36 provide an "internally consistent basis for judicial decision" and attempts to reinterpret post-war legal doctrine through her critique of industrial pluralism. (Stone, op. cit., n. 20, p. 1516.) Klare, op. cit., n. 7, pp. 69ff. 37 Boys Market Inc. v. Retail Clerks Local 770, 398 U.S. 235 [1970]. 38 39 For example, Sinclair Refining Co. v. Atleson, 370 U.S. 195 [1962]. Klare, op. cit., n. 32, p. 105. 4o 41 Atleson, op. cit., n. 19. 42 For example, the judicially implied 'no strike' clause in collective agreements in Local 174, Teamstersv. Lucas Flour Co. 369 U.S. 95 [1962];Gateway Coal Co. v. U.M.W. 414 U.S. 382. This is certainly the philosophy of the N.L.R.A. and can be traced in U.S.A. labour history 43 to Holme's famous dissenting opinion in Vegelahnv. Guntner167 Mass. 92 [1896]. The New York University Colloquium revealed a contemporary pluralist concern here, op. cit., n. 16; see in particular, David Feller at p. 139. 44 See especially, Stone, op. cit., n. 20.

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45

46

47
48

Supra, n. 25. Kahn-Freund observed that "the American plant agreement" leaves to the employer "little . . . except the act of hiring", suggesting that the scope of bargaining is greater in the U.S.A. than in Britain. O. Kahn-Freund, Labourand the Law (2nd. ed., 1977) p. 125. Klare, op. cit., n. 7, p. 72. R. M. Unger, Knowledgeand Politics (1975). Klare, op. cit., n. 3, p. 1416.
Id.

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Stone, op. cit., n. 20. Kahn-Freund, op. cit., n. 45, pp. 242-3. Employment Protection (Consolidation) Act 1978 (as amended by Employment Acts 1980 and 1982) ss. 58, 58A. Stone, op. cit., n. 20, p. 1517. Id., p. 1580. See also, Alan Hyde's account of the distinction between the 'political' and 'economic' activities of trade unions: Alan Hyde, "Economic Labor Law v. Political Labor Relations: Dilemmas for Liberal Legalism" (1981) 60 Texas Law Rev. p. 1. For further elaboration of a difficult concept see Hunt, op. cit., pp. 20ff. A. Hutchinson and P. Monahan, "Law, Politics and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought" (1984) 36 Stanford Law Rev. p. 226. Klare, op. cit., n. 7. Klare, op. cit., n. 32. Stone, op. cit., n. 20. Atleson, op. cit., n. 25. F. Munger and C. Seron, "Critical Legal Studies versus Critical Legal Theory: A Comment on Method" (1984) 6 Law & Policy p. 257. D. Trubek, "Where the Action is: Critical Legal Studies and Empiricism"(1984) 36 Stanford Law Rev. p. 575 at p. 586. Munger and Seron, op. cit., n. 62. J. Frank, Law and the Modern Mind (1949). Klare, op. cit., n. 32. See in particular the long exchange between Klare and Finkin (opposing the critical approach): M. Finkin, "Revisionism in Labour Law" (1984) 43 Maryland Law Rev. p. 23; K. Klare, "Traditional Labor Law Scholarship and the Crisis of Collective Bargaining: A Reply to Professor Finkin" (1985) 44 Maryland Law Rev. p. 731. Klare, op. cit., n. 7. Klare, op. cit., n. 32. Klare, op. cit., n. 7, p. 66. Klare has stated his position as follows: "My work has been written within a democratic non-Comuunist Left tradition and from a frame of reference heavily critical of orthodox Marxist categories." (Klare, op. cit., n. 67, p. 836.) The rejection of'orthodox Marxism' is a common feature of critical legal studies - it appears that a serious assessment of Marxism is not. Munger and Seron, op. cit., n. 62, p. 263. Klare, op. cit., n. 5, p. 269, n. 13. However, Klare has since rejected the notion of'relative autonomy' (op. cit., n. 67, p. 752). Alan Hunt has identified it as a key problem in critical scholarship (op. cit., n. 1, pp. 28ff). Atleson, op. cit., n. 25; Klare, "Management Prerogatives, Plant Closings and the N.L.R.A.: A Response" (1982) 11 New York UniversityRev. Law and Social Change p. 113. Id., p. 120. Hunt, op. cit., p. 11. Trubek, op. cit., n. 63, p. 613. Klare, op. cit., n. 7, p. 73. Stone, op. cit., n. 20, p. 1566. Trubek, op. cit., n. 63, p. 613.

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81 82

83 84 85 86 87

88 89

90 91
92

As Klare has done: op. cit., n. 10, p. 452, n. 6. H. Arthurs, "Understanding Labour Law: The Debate over 'Industrial Pluralism' " (1985) CurrentLegal Problems p. 83. Klare, op. cit., n. 67, pp. 750ff. Hunt, op. cit., p. 13. Trubek, op. cit., n. 63, p. 591. Atleson, op. cit., n. 19, p. 181, n. 4. For example, P. E. Johnson, "Do you Sincerely Want to be Radical?" (1984) 36 Stanford Law Rev. p. 247, pp. 281ff; L. B. Schwarz, "With Gun and Camera Through Darkest C.L.S.Land" (1984) 36 Stanford Law Rev. p. 413, pp. 426ff. Sparer, op. cit., n. 8, pp. 512 and 552ff. Stone, op. cit., n. 20, p. 1580. Lynd, op. cit., n. 22. Lynd, op. cit., n. 17. Stone, op. cit., n. 20, p. 1516.
Id.

93

94 Lynd, op. cit., n. 17. 95 Supra, n. 56. 96 Klare, op. cit., n. 7, p. 81. Klare, op. cit., n. 10, p. 451, n. 4. 97 98 Schwarz, op. cit., n. 87, p. 426. 99 Johnson, op. cit., n. 87, p. 283. 100 Klare, op. cit., n. 5, pp. 336-9. 1o01 Supra,n.73. 102 Supra,n.81. 103 Supra, n. 100. 104 D. Trubek, "Complexity and Contradiction in the Legal Order:Balbus and the Challenge of Critical Social Thought about Law" (1977) 11 Law and Society Rev. p. 529, p. 545. Ios Id., p. 544.

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