Otto Kahn‐Freund and Collective Laissez‐Faire: An Edifice without a Keystone?
| Published date | 01 March 2009 |
| Date | 01 March 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00741.x |
| Author | Ruth Dukes |
Otto Kahn-Freund and Collective Laissez-Faire: An
Edi¢ce without a Keystone?
Rut h D uke s
n
This paper describes Otto Kahn-Freund’sadvocacy of the British‘collective laissez-faire’system of
regulation of industrial relations, in which regulation proceeded autonomously of the state. It
suggests that aweakness of collective laissez-faire as a normative principle was its failure tomake
adequate provisionfor the furtherance of the public interest. It links this failure to a more general
reluctance, on the part of Kahn-Freund, to conceive of the state as representative of the public
interest. And it seeks to explain this reluctance with reference to Kahn-Freund’s experiences of
living and working as a labour court judge in the Weimar Republic, and of moving to the UK
as a refugee from Nazism.
INTRODUCTION
What men think about the state is the outcome always of the experience in which
they are immersed .. . And the more critical the epoch in which we live the more
profound is the emphasis upon universality. Men ¢ght grimly for the status of
ideologies le st the expe rience they s eek to validate be denied by their oppone nts.
1
In the development of anysystem for the regulation of working lives, and for the
organisation of work and production, both the nature and measure of state inter-
vention are bound to be key.With the aim of achieving certain substantive goals,
such as a minimumstandard of living forworking people,or fair and equal treat-
ment of workers ofdi¡erent race, sexor religion, a governmentmight intervene
directly in employment relations, setting minimumwages and maximum work-
ing hours, guaranteeing holiday and sickness payand prohibiting discrimination.
Alternatively, it might be thought better to leave some or all of these matters to
the contractual autonomyof the parties to the employment relation, acting either
individually or collectively. In the latter case, governments of course continue to
play a role, though now a less direct one, in the regulation of employment rela-
tions, shaping the context within which the parties meet and negotiate. It is pos-
sible that a government might takesteps to create a particularlegal framework for
the negotiation of agreements and the settling of disputes,making detailed provi-
sion, forexample, for the institution of workercollectivities and for speci¢c legal
n
School of Law,University of Glasgow.Versions of this paper were presented at the European Social
Science History Conference in Lisbon in February 2008 and at aWorkshopon Industrial Democracy at
the London School of Economics in May 2008.I am very grateful to NinaFi shman foralerting me to
the unpublished note on compulsory arbitration cited at n 111below, and for asking me the question,
why did he think as he did?I am alsovery grateful to Alan Bogg,Emilios Christodoulidis,Paul Davies
and Mark Freedland for comments on an ea rlier draft.
1 H.J.Laski,A Grammarof Politics(London: Alle n & Unwin,5th ed,1967)i.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(2) 220^246
rights for those bodies to participate with management in the regulation of
employment relations. In other cases, a government might take a more laissez-
faire approach, allowing the parties a wide measure ofcontractual freedom both
in negotiating terms and conditions, and in deciding on the mechanisms for
doing so. Even in the case of the laissez-faire government, however, the impor-
tance of its role should not be overlooked. In order to understand the system of
regulation fully, attention should be directed not only to the question of what the
government means to achieve with its policy of non-intervention, but also to its
broadereconomic and social policies (forexample,policies directed at controlling
levels of unemployment, or providing welfare) and the ways in which these
might a¡ect the negotiation of employment norms.
The attitude of British governments to the regulation of industry throughout
much of the twentieth century is often described as one of collective laissez-faire.
This was the term coined by Otto Kahn-Freund (1900^1979) to describe what he
understood tobe the particularly British approach to the regulation of industrial
relations, involvingthe promotionof collective bargaining as thepreferred means
of setting termsand conditions of employmentand of settling industrial disputes.
Ratherthan intervening directly in employmentrelations, successiveBritish gov-
ernments left it to trade unions and employers to negotiate the rules that would
govern working lives and production. According to Kahn-Freund’s principle of
collective laissez-faire, it was critical that this negotiation should proceed collec-
tively and autonomouslyof the state. Such was the imbalance of powerbetween indi-
vidual employees and employers that the veryidea of freedom of contract in this
context was a sham: the vast majority of employers were in a position to dictate
terms and conditions. Ifworkers bandedtogether tocreate trade unions,however,
theycould increase their bargaining powerand become the equal of theemployer
or employers’ association.While governments could rightfully act to promote the
creation of trade unions and the institution of collective bargaining machinery
they ought not, as a general rule, to intervene directly in the regulation of either
individual or collective employmentrelations. Collective laissez-faire involved, as
Kahn-Freund pithily put it,‘the retreat of the law from industrial relations andof
industrial relations fromthe law’.
2
In the decadesfollowing the endof the SecondWorldWar, Kahn-Freund’s con-
ception of collective laissez-faire came to be highly in£uential, informing the
thinking of British trade unionists, employers, judges and governments of both
political parties.
3
Even today, when the regulation of employment relations has
less and less in common with theforms of regulation described byKahn-Freund,
the idea of collective laissez-faire, or voluntarism, retains a signi¢cant measure of
ideological force.
4
For labour lawyers, it remains the most obvious starting poi nt
for discussion of employment law and employment relations: an ‘analytical edi-
¢ce’, in the words of LordWedderburn, which has housed all scholars since the
2 O. Kahn-Freund,‘LabourLaw’ in M. Ginsberg (ed),Law and Opinionin England in the 20th Century
(London: Stevens,1959) reprinted in O.Kahn-Freund, SelectedWritings(London: Stevens,1978) 9.
3 R. Lewis,‘The Historical Development of Labour Law’ (1976) 14BJIR 1.
4 R. Dukes, ‘The Statutory Recognition Procedure 1999: No Bias in Favour of Recognition?’
(2008) 37 Indus LJ236; L. Dickens,‘Legal regulation, institutions and industrial relations’(2008)
No 89 WarwickPapersin Industrial Relations.
Ruth Dukes
221
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(2) 220^246
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