How did you become interested in the topics of labour law, worker representation and the legal history of labour law?
I first studied labour law as a final year undergraduate student. I came to the subject with few preconceptions; only a vaguely worded but enthusiastic recommendation from a friend – and the promise of a copy of his notes. In any case, it was soon the subject that interested me most at University, precisely because of the significance of historical perspectives and understandings to its study. My father was a professor of history and my mother a history graduate, and I had been brought up to understand very well the importance of history as well as its interest value! The other subject that I had enjoyed in law school was property law, taught to us as a beautiful system, closely based on Roman law, with its own internal logic and potential for deductive reasoning. And I had enjoyed the puzzling. Turning my mind eventually to postgraduate study, however, there was no competition between the two subjects. All was there in labour law: history, politics, economy and society. At least as I had been given to understand it, property law, in comparison, seemed very limited and limiting.
In your talk I sensed general concern for labour conditions and the real-world impact of labour law and regulations. At the same time you are deeply engaged in theoretical and conceptual work and the development of research frameworks. (How) do these ends come together for you? Do you find it easy to switch between layers of abstraction, from conceptual to ‘real world’?
Well of course, just as empirical study – of the ‘real world’ – must be informed by theory, so theory should be informed by empirical study. Why? This brings us back to history and to the notion of history as capitalist development, which I take from Wolfgang Streeck. Capitalist economies and societies are always evolving, as is the organisation of production, of work, and the regulation of working relationships. It follows that the possibility arises that a theory constructed and applied to the study of work at a certain point in time – for example, in the earlier part of the twentieth century, when Fordist relations of production were prominent – may gradually lose its fit with – its applicability to – working relations as they are organised and regulated today. Empirical research then becomes necessary to answer the question of the enduring (or not) applicability of the theory in question, and to assist with adapting it to new circumstances, or with discarding the old theory and identifying and developing a new one. So to answer your question, I think that one should always be switching from the more abstract and conceptual to the empirical and back again.
You undertook intensive study of the history of labour law and the foundational texts of the field. What can we learn from these texts today? And how do these texts relate to your latest research project, Work On Demand, and the gig economy in general?
In my 2014 monograph, The Labour Constitution: the Enduring Idea of Labour Law, I posed precisely that question: what can we learn today from the foundational texts and theories of labour law? I focused, in particular, on the German Jewish scholars Hugo Sinzheimer (1875-1945) and Otto Kahn-Freund (1900-1979) and their respective key concepts: the labour constitution, and collective laissez-faire. In order to answer the question, I first analysed these authors’ work with reference to the specific historical and geographical context within which it had been written. I then considered the ways in which the organisation and regulation of work had changed since those times. My starting point, however, was the suspicion that scholars of labour law might have been too quick to characterise these ‘old ways’ of studying the field as outdated and no longer of any use. After all, however much the economy and society may have changed in the past 50 or 100 years, what has remained the same is their fundamentally capitalist nature. In emphasising change and in adapting analysis accordingly, we must take care not to obscure important continuities. What I aimed to discover, then, in the course of my research was whether these traditional narratives really had become outdated, and if so, why? Which aspects of them were no longer fit for purpose? Could nothing be salvaged or reconditioned of the lessons that they had taught? As things turned out, it was not Kahn-Freund’s collective laissez-faire but Sinzheimer’s labour constitution which came to shape the research project and resulting book. The principal argument that I sought to make was that the idea of the labour constitution was indeed still relevant to the study of labour law today, not least because it invoked the principle of industrial, or economic, democracy as fundamental to the field. As a framework for scholarly analysis of labour law, I argued, the idea of the labour constitution continued to focus our attention on important questions and important fields of enquiry – questions of the consequences for workers of the narrowing and disappearance of spaces for democratic deliberation and democratic decision-making.
The Work on Demand project grew directly out of those conclusions. The aim of the project was to investigate trends towards ever-more insecure and precarious working relations and, in the course of doing so, to identify or develop an approach to the study of labour law that was capable of taking account of the economic and social as well as the legal dimensions of the act of contracting for work. As a first step, I looked to the work of Max Weber, especially elements of his economic sociology and sociology of law, to consider the contours of an economic sociology of labour law (Dukes, ‘The Economic Sociology of Labour Law’ (2019) 46(3) Journal of Law and Society, forthcoming).
Here I discovered that Weber, too, had used the term labour constitution, in his studies of agricultural employment relations east of the river Elbe, published in the 1890s. In Weber’s hands, the concept of the labour constitution had been formed into an ideal type: a logically coherent statement of the characteristic properties of a particular regime of labour relations, or ‘system of social stratification’. 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 characterised 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. The latter emerged as a result of the ‘proletarianization’ of agrarian labour, and the polarisation of what was now class conflict between the owners of the land and their workers.
Whereas Sinzheimer had used the term labour constitution in the very specific historical context of the November 1918 revolution and the efforts that followed on its heels to establish a new social democratic German state – when, out of the fire of revolution, cohesive and oppositional social classes were forged – it seemed to me that Weber’s conception of Arbeitsverfassung fitted rather better with the more fragmented, less centralised and less politicised, more market-driven society and class structure of the post-neoliberal era. Whereas Weber had developed his ideal types so as to understand changes over time in the organisation of labour relations in a single location, it was 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 at different points in 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.
To come back to your question, though, while my focus has been with Max Weber’s work now, for the past year or two, that it is not at all to suggest that the I have somehow changed my mind regarding the continued relevance of the foundational labour law texts by Sinzheimer, Kahn-Freund and others. At the end of my most recent paper, I contrast the Weber-inspired economic sociology of labour law, with the ‘critical socio-legal’ approach developed by Sinzheimer and find the two to have much in common, sharing several strengths. Where they differ is primarily in respect of the focus and scope of the analysis that they encourage. The ‘economic sociology of law’ approach has the significant advantage, I suggest, of allowing for proper account to be taken of the individual and commercial elements of the process of contracting for work, without encouraging the adoption of overly reductive conceptions akin to the idealized market transaction of economic theory. In the work of Sinzheimer, Kahn-Freund and others writing, in the earlier part of the twentieth century, these individual and commercial elements tended to be treated as (largely) suppressed by collective bargaining and labour legislation.
The Work On Demand project is still at an early stage. What would you and your team like to achieve with the project over the next years?
That’s right, the project began on 1 January 2018 and will run for 5 years in total, so we still have some time to go. At the moment, I’m working together with a fantastic team of three postdoctoral researchers – Alessio Bertolini, Eleanor Kirk, and Gregoris Ioannou – and a PhD student, Ou Lin. In the first instance, we are focusing on the hospitality and catering sector, on human resource management, and on platform-mediated ‘gig’ work. Fieldwork is currently being undertaken in Greece, Italy and the UK, and next year Ou Lin will also undertake research with delivery couriers in China. The aims of the project, as mentioned above, are essentially two-fold: to investigate trends towards ever more insecure and precarious working relationships and, at the same time, to further develop and refine our ‘economic sociology of labour law’ approach.