REVIEWS
| Published date | 01 March 1973 |
| Date | 01 March 1973 |
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01363.x |
REVIEWS
LABOUR
AND
THE
LAW.
By
OTTO
KAHN-FREUND.
[London
:
Stevens
No
one can speak with greater authority on labour law, both in Britain and
overseas, than Professor Kahn-Freund. All practitioners in industrial relations
have good reason to be grateful to him and
to
those who have followed the
paths
he
has marked out.
I
am therefore glad to have the opportunity to
review this book.
AS one who is relatively unversed in legal technicalities
I
have sometimes
felt that many lawyers are blinkered; that they pay too much attention to the
letter of the law and, in doing
so,
ignore the reason
for
the existence of a
particular law, and whether it is
a
good law
or
not. In short,
I
think that
some lawyers tend to avoid looking
at
social considerations, and because of
this see the law as an end in itself rather than
a
means to
an
end.
I
have never hidden my belief that the Industrial Relations Act
1971
is
a
vehicle for prejudice, and that its aim is to weaken trade unions rather than
to improve industrial relations. But, sadly, most
of
the literature produced by
lawyers on
the
Industrial Relations Act reveals precisely the faults
I
have
suggested above: it is narrow, and ignores the social background
to
the Act
and
its potential consequences.
I3ut Professor Kahn-Freund’s book
has
all
the perspective one could wish.
It
does not look
at
the Industrial Relations Act in isolation, but, by examining
the growth and need for labour law and by comparison with foreign systems,
puts that measure into its proper context.
Professor Imakes his view clear from the start, and it is
a
view with which
I
wholly concur.
It
is
that law is
a
secondary force in human
affairs,
and
particularly in labour relations.
The
main object of labour law,
he
says, is
‘I
to be
a
countervailing force to
counteract the inequality
of
bargaining power which is inherent and must be
inherent in the employment relationship.”
He
goes on to say that there
is
a conflict in the employment situation between management and labour
:
the
purpose
of
collective bargaining is to regulate and institutionalise this conflict
through collective agreements. In this the role of labour law can only be
marginal.
Pointing
to
the importance of
“
custom and practice” in British collective
bargaining, Professor Kahn-Freund states that trying to separate
a
formal
collective agreement from its traditional customary background is not likely
to be
a
profitable exerciso“it is almost
as
if
a
foreign lawyer tried
to
understand an English statute without seeing its common law background.”
This point has been made before-by, among others, the Donovan Commis-
sion-but
I
doubt whethcr it will be made more lucidly. And yet, despite its
central importance, it has been virtually ignored by the present Government in
its Industrial Relations Act, although, in Professor Kahn-Freund’s words, to
think that reform can be achieved
“
tlirough the creation of
a
legal framework
is as realistic as the idea that the common law could, by
a
stroke of the
legislative pen, be transformed into
a
codified system.”
But Professor I does not take the view that there are no
defects in the British system
of
industrial relations,
or
that nothing should be
done about reform. What
is
most important
to
him, however, is
to
find out
why disputes occur and to remove their causes.
I
agree with this, and like
Profcssor Kahn-Freund believe that it
is
more fruitful
to
promote collective
bargaining and collective agreements and their observance than
to
‘I
sharpen
the tools
of
repression.”
A great deal nccds to
lie
clone-in particular, unions and employers need
&
Sons.
1972.
Bound
E8-50.
Paperback
E1.80.1
230
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