Reviews
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00186 |
| Published date | 01 November 1998 |
| Date | 01 November 1998 |
REVIEWS
Ralf Rogowski and Ton Wilthagen (eds), Reflexive Labour Law: Studies in
Industrial Relations and Employment Regulation, Deventer: Kluwer, 1994, viii
+ 390 pp, pb £45.00.
Let there be no doubt, even if confusion abounds; systems theory sends a vital
message to labour law. The message is expressed in unfamiliar jargon, such as the
‘regulatory trilemma’, ‘autopoiesis’, and ‘structural coupling’, or terms which
seem familiar but are seldom understood in their intended sense, such as ‘reflexive
law’ and ‘juridification’. These flourishes of theory discourage the intellectual
engagement of labour lawyers in the UK, who prefer their traditional stance of
pragmatic, political realism. But the pragmatic labour lawyer has much to learn
from systems theory.
The principal message from systems theory which is of relevance to labour
lawyers concerns the effectiveness of regulation. Consider the plan to introduce a
minimum wage in the UK. How can the law achieve its end of raising the living
standards of the lowest paid without deleterious effects on this and other groups in
society? The first point, which is not unfamiliar, is that this political aim will have
to be translated into legal terminology in the form of a statute. In order to reorient
the law towards this goal, the legal system must explain to itself what is required.
One step in this translation, for example, must be to identify the categories of
contracts to which price regulation applies: is it confined to contracts of
employment, or should it include some other species of contracts for services,
and, if the latter, how can the legal system describe in its own terms the reach of
those categories of contracts, given its traditional intellectual bifurcation of
contracts of employment and contracts for services?
The second point is less familiar. Once legal regulation has been achieved, the
regulated groups will understand the meaning of this regulation, not in legal terms,
but from their own perspective. The management of a business may perceive the
minimum wage law to be another regulatory cost to the business, which, like all
costs, should be minimised so far as possible. This objective of minimising the
costs of regulation can be achieved by a combination of measures. The option of
making workers redundant seems to me the least probable, because it assumes an
unrealistic degree of elasticity of demand for labour. Much more likely responses
include a reconfiguration of the wage structure so that the lowest paid gain at the
expense of the slightly better off, with no net increase in wage costs, or,
alternatively, the elimination of non-wage costs, fringe benefits, for the lowest
paid, so that the total labour cost for each employee remains constant or is even
reduced. Indeed, the advent of the minimum wage is likely to be used to justify
challenges to settled differentials in pay between groups within a firm’s internal
labour market, an objective which probably meshes with other management aims
such as flexibility and derigidification of internal labour markets. There are other
groups as well, such as employees and trade unions, who will place their own
meaning on the regulation. The crucial point is that a double translation occurs:
first, the political aspiration becomes a communication within the legal system;
then, the message from the legal system is translated into a different message in the
The Modern Law Review Limited 1998 (MLR 61:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
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