ON USES AND MISUSES OF COMPARATIVE LABOUR LAW: A CASE STUDY
| Published date | 01 May 1982 |
| Author | Christoper J. Whelan |
| Date | 01 May 1982 |
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02481.x |
ON
USES AND MISUSES
OF
COMPARATIVE
LABOUR LAW:
A
CASE
STUDY
I.
INTRODUCTION
ONE
inevitable source of innovation in collective labour law and
industrial relations procedure is the adoption of methods pioneered
in other countries. Politicians as well as academics continually look
abroad for practices which could be incorporated into the domestic
system, as well as for evidence to reject new proposa1s.l Studies
which describe themselves as
“
comparative
”
usually take one of
three forms. First, there are studies which are simply a collection
of writings by international scholars, usually on
a
chosen topic,
without comparative analysis-apart from the occasional general
introductory chapter. Chapters might have been published separa-
tely.a While they are often
of
the highest standard, and their col-
lection together in one book can be useful, the inclusion
of
the
term “comparison”
in
the title or introduction is seriously mis-
leading.s As Summers has graphically pointed out,
“Work in comparative law is constantly in danger of becom-
ing little more than the collecting of legal rules as souvenirs
for scholarly display and intellectual oneupmanship. Elaborate
and finely drawn comparisons may have little more meaning
and less excuse than the travelling schoolgirl’s collection of
foreign dolls in native dress.”
Secondly, there are theoretical studies, which lay down the
‘‘
ground rules
”
for proper application of the comparative method.”
Thus, according to a review of the literature by Schmitthoff, there
’
1
Some American writers have adopted the
“
reverse
”
approach,
for
example,
Barkin,
“
Is
the U.S. the Model for World Labor and Industrial Relations?
”
(1960)
11
Labor Law Journal
1120;
Myers,
‘’
The American System of Industrial Rela-
tions:
Is
it
Exportable?
”
(1962)
Proceedings of
fhe
Fifteenth Annual Meefing
Of
fhe Industrid Relations Research Association
1;
Windmuller,
“
Model Industrial
Relatlons Systems
”
(1963)
Proceedings
of
the Sixteenfh Annual Meeting
of
I.R.R.A.
60.
a
For example, Sturmthal (ed.),
Confemporary Collective Bargaining in Seven
Counfries
(1957);
Kahn-Freund (cd.),
Lubour Relations and
fhe
Low:
A Compura-
five study
(1965);
Aaron (ed.).
Dispufe Sefflement Procedures in Five Wesfern
European Countries
(1969):
Rehmus (ed.),
Public Employment Labor Relufions: An
Overview of Eleven Nations
(1975).
8
Kassalow,
in
Trade Unions and Industrial Relations: An Infernafionul
Com-
parison
(1969).
is
“
convinced
’*
of
the
‘‘
superiority
of
the genuinely Comparative
approach as opposed to the separate, country-by-country accounts one often flnds
in
so-called comparative volumes? Preface,
p.
v.
4
Summers,
‘‘
American and European Labor Law: the Use and Usefulness
of
Foreign Experience
”
(1966) 16
Buff.L.Rev.
210,227.
5
Butler has pointed out that the purpose of deflning the nature and purpose
of
thelr field
is
a
topic
to
which comparative lawyers
rn7y
have given “inordinate
attention,” pafticularly
if
comparison in law
is
indeed more akin to an art than
a science
”:
International Law and the Comparative Method
’’
(1977)
30
C.L.P.
105,
106.
285
286
THE
MODERN LAW REVIEW
[Vol.
45
are three prerequisites for use
of
the comparative method generally:
the topic must be comparable; regard must be had to the legal and
social background; and an analytical classification
of
an impartial
and purely scientific character must be applied to the matters under
investigation.‘ These general requirements apply particularly in
industrial relations. According to Kassalow,
“
Without a fair under-
standing of the social, economic and political setting of the indus-
trial relations system in
a
given country one can make errors
of
analysis or judgment, or, even more likely, learn only half truths
about the significance of particular industrial relations policies
or
practices in foreign countries.”
‘
Meanwhile, Kahn-Freund warned
that it
is
essential to differentiate between two types of compara-
tive data: first, where similar words or concepts (such as
“
strike
”)
are used in different countries, but have different definitions and
meanings; and secondly, where different words
or
concepts used
in different countries have the same meaning.8 These works provide
valuable and now widely recognised lessons.
Finally, there are those relatively rare studies in labour relations
law, which actually undertake the difficult task of comparative
analysis with success.1o The paramount example of this in the
United Kingdom has been the incomparable works of Kahn-Freund,
while on the international level, the studies of the Comparative
Labour Law Group have often provided examples of the compara-
tive meth0d.l’ Against this background, the object
of
this article is
twofold. The main purpose is to analyse the introduction of the
emergency procedures of the Industrial Relations Act
1971.
More
than any other provision of this Act, these were drawn most clearly
and directly from the United States law. They had the
“
object
of
6
Schmitthoff.
“
The Science
of
Comparative Law
”
(1939)
7
C.L.J.
94, 96.
7
Kassalow,
‘I
The Comparative Labour Field
”
Bulletin
No.
5.
International
8
Kahn-Freund, Comparative Law
as
an Academic Subject
(1965).
0
It should be noted that not all “comparativists” would agree that knowledge
of
the political, social
or
economic context of the foreign law is necessary for the
achievement
of
successful borrowing. Alan Watson for example, has taken issue
with Kahn-Freund (infra, note
12)
on
the !,uideiines: see Legal Transplants
(1974).
and “Legal Transplants and Law Reform
(1976) 92
L.Q.R.
79.
He argued that
the law reformer need look only for an idea which could be transformed into
domestic law, for which
a
systematic knowledge
of
the law
or
political structure
of
the
donor
system was not necessary (though law reform might be more efflcient if
such knowledge was obtained).
10
According
to
Wedderburn, “The bane
of
‘comparative’ law is the spurious
attempt to compare the incomparable;, and labour law suffers more than most at
the international level from this vice, in
F.
Schmidt (ed.), Discrimination in Em-
ployment
(1978),
p.
459;
for an introductory list
of
“
comparative
’’
works in labour
law, see Ziskind,
‘‘
Labor Law Coniparison
in
Perspective
”
(1977) 2
Comparative
Labor Law
209.
11
Kahn-Freund’s works culminated in Labour and the Law (2nd ed..
1977)
and
Labour Relations: Heritage and Adjustment
(1979);
two excellent comparative
studies by the Comparative Labour Law Group are Aaron and Wedderburn
(eds.),
Indirstrial Conflict: A Comparative Legal Survey
(1972)
(which is particularly rele-
vant
in
the context
of
this article), and
F.
Schmidt (ed.), Discrimination in
Employment
(1
978).
Institute
for
Labour Studies
(1968),
p.
99.
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