Labour Constitutions and Occupational Communities: Social Norms and Legal Norms at Work
| Published date | 01 November 2020 |
| Author | WOLFGANG STREECK,RUTH DUKES |
| DOI | http://doi.org/10.1111/jols.12254 |
| Date | 01 November 2020 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 4, NOVEMBER 2020
ISSN: 0263-323X, pp. 612–38
Labour Constitutions and Occupational Communities:
Social Norms and Legal Norms at Work
RUTH DUKES∗AND WOLFGANG STREECK∗∗
This paper considers the interaction of legal norms and social norms
in the regulation of work and working relations, observing that, with
the contraction of collective bargaining, this is a matter that no longer
attracts the attention that it deserves. Drawing upon two concepts from
sociology – Max Weber’s ‘labour constitution’ and Seymour Martin
Lipset’s ‘occupational community’ – it focuses on possibilities for
the emergence, within groups of workers, of shared normative beliefs
concerning ‘industrial justice’ (Selznick); for collective solidarity and
agency; for the transformation of shared beliefs into legally binding
norms; and for the enforcement ofthose norms. If labour law is currently
in ‘crisis’, then a promising route out of the crisis, we argue, is for the
law to recover its procedural focus, facilitating and encouraging these
processes.
I. INTRODUCTION
Labour constitutions include the social organization of both formal and
informal relations among workers, and between workers and their employers.
∗School of Law, University of Glasgow, Stair Building, 5–9 The Square,
Glasgow, G12 8QQ, Scotland
ruth.dukes@glasgow.ac.uk
∗∗ Max Planck Institute for the Study of Societies, Paulstr. 3, Cologne, 50676,
Germany
streeck@mpifg.de
This project received funding from the European Research Council (ERC) under the
European Union’sHorizon 2020 research and innovation programme (grant agreement No
757395). We are grateful to Aude Cefaliello and Rex Panneman for research assistance
and to the following for constructive comments and criticisms: Chris Hann, Miriam
Glucksmann, Mark Harvey, Marie-Claire Foblets, Alan Bogg, Marija Bartl, Candida
Leone, Michel Coutu, Supriya Routh, Alessio Bertolini, Gregoris Ioannou, Eleanor Kirk,
and Ou Lin. We thank Fred Block for posing the question of a labour constitution from
below.
612
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,
which permits use and distribution in any medium, provided the original work is properlycited, the use is non-commercial
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© 2020 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of CardiffUniversity (CU)
By ‘labour constitution’, we mean the historically determined ensemble of
rules, institutions, social statuses, and economic and technological conditions
that together shape decision making in respect of the question who gets what
work under which terms and conditions.1So understood, the concept of the
labour constitution can serve as a heuristic to map the various contexts within
which working relations are regulated – the particular workplace, company,
sector, locality, or jurisdiction – and to analyse the consequences for workers
and other actors of institutional change.2The social organization of working
relations included in this notion of the labour constitution may similarly be
co-extensive with a specific workplace or company or it might extend beyond
these to encompass entire sectors, occupations, or professions.
Particular forms of social organization are related to particular
understandings of a just order, producing social norms and, in some cases,
mechanisms for their enforcement. In the social organization of work, these
norms and understandings concern questions of how and when work should
be done and who should do it. Most importantly for our purposes, they
concern the desired, or just, boundaries between work, on the one hand, and
social and family life, on the other – between the commodified and non-
commodified spheres of workers’ lives. Social norms stand in a complex
relation with formal law. In some cases, legal rules may have their origins
in social norms or practices – for example, where elements of ‘custom and
practice’ are held by the courts to be legally binding, or where the terms of
collective agreements are accorded legal force by reason of a court ruling
or statutory provision. Where legal rules and social norms are at odds with
each other, however, so that the former are perceived by those affected to be
unfair or unrealistic, breach of the law may go unchallenged in a manner that
undermines, over time, its efficacy and legitimacy. It is also possible that the
substance of applicable legal rules may shape workers’ perceptions of what is
fair in a given situation. The ‘knowledgeability’ of social and economic action
is invested, we might say, with legal notions and concepts, even if these are
apprehended by the actors themselves in the guise of practices, routines, or
shared understandings that are only dimly reminiscent of the legal rule from
which they originally stem.3
In recent decades, it has become increasingly clear that existing systems
of labour law – devised, at least in their essentials, in the first or middle
parts of the twentieth century – are no longer fit for purpose. In the
1 We develop this definition with reference to the work of Max Weber; R. Dukes,
‘Economic Sociology of Labour Law’ (2019) 46 J. of Law and Society 396. For
discussion of various uses of the term ‘labour constitution’ in the literature, see M.
Coutu, ‘Economic Crises, Crisis of Labour Law? Lessons from Weimar’ (2020) 47
J. of Law and Society 221.
2Id.
3 R. Knegt, ‘Labour Constitutions and Market Logics: A Socio-Historical Approach’
(2018) 27 Social & Legal Studies 512; M. Weber, Economy and Society (1978) 312.
613
© 2020 The Authors. Journal of Law and Society published by John Wiley& Sons Ltd on behalf of Cardiff University (CU)
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