The Economic Sociology of Labour Law
| Date | 01 September 2019 |
| Author | Ruth Dukes |
| DOI | http://doi.org/10.1111/jols.12168 |
| Published date | 01 September 2019 |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, NUMBER 3, SEPTEMBER 2019
ISSN: 0263-323X, pp. 396±422
The Economic Sociology of Labour Law
Ruth Dukes*
Drawing on the work of Max Weber, this article considers the utility of
an approach to the study of labour law, which it calls the economic
sociology of labour law (ESLL). It identifies the contract for work as
the key legal institution in the field, and the primary focus of scholarly
analysis. Characterizing the act of contracting for work as an example
of what Weber called economic social action oriented to the legal
order, it proposes that Weber's notion of the labour constitution be
used to map the context within which contracting for work takes place.
And it argues that, in comparison to traditional socio-legal
approaches, ESLL has the significant advantage of allowing for
account to be taken of the individual and commercial, as well as the
social and legal, elements of contracting for work.
INTRODUCTION
Over the course of the past decade or so, burgeoning interest in economic
sociology as a field of scholarly endeavour has been accompanied by calls
for the development of an economic sociology of law ± or, as we might
otherwise call it, a sociology of law and economics.
1
The ambition of those
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*School of Law, Stair Building, 5±9 The Square, University of Glasgow,
Glasgow G12 8QQ, Scotland
ruth.dukes@glasgow.ac.uk
The project leading to this publication is funded by the European Research Council
(ERC) under the European Union's Horizon 2020 research and innovation programme
(grant agreement No. 757395). I am very grateful to the following for comments on an
earlier draft: Wolfgang Streeck, Simon Deakin, Mark Freedland, Judy Fudge, Emilios
Christodoulidis, Lizzie Barmes, Robert Knegt, and Michel Coutu.
1 R. Swedberg, `The Case for an Economic Sociology of Law' (2003) 32 Theory and
Society 1; S. Frerichs, `Re-embedding Neo-liberal Constitutionalism: A Polanyian
Case for the Economic Sociology of Law' in Karl Polanyi, Globalisation and the
Potential of Law in Transnational Markets, eds. C. Joerges and J. Falke (2011); D.
Ashiagbor et al. (eds.), Special Issue: `Towards an Economic Sociology of Law'
(2013) 40(1) J. of Law and Society; R. Swedberg, Max Weber and the Idea of
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
making the calls is, in essence, to apply sociological approaches, concepts,
and methods to the two fields ± economics and law ± and to instances of their
interaction. According to Sabine Frerichs's useful formulation, the economic
sociology of law is thus best understood as:
an academic venture located in the middle of the social sciences . . . an
integrative effort in reconnecting law, economy, and society, both as spheres
of reality and as fields of scholarly interest . . . to assert a genuinely socio-
logical point of view which focuses on the relations between these spheres.
2
The aim of this article is to consider the utility of an economic sociology
of law, or ESL, to the study of labour law ± the field of law which regulates
relations between workers and employers and their respective representa-
tives (trade unions, works councils, employers' associations). In recent years,
there has been talk of a crisis in labour law, as concepts and paradigms
developed during the Fordist era have become increasingly ill-suited to
capturing the realities of post-Fordist working relations. Neo-classical
economic thinking about working relationships and labour law has assumed
the status of orthodoxy, shaping the policy and legislation of governments of
both the centre right and centre left, and even, over time, workers' own
perceptions of the world of work. As governments have sought to weaken
existing protections and to lower labour standards in the name of flexibility
and job creation, workers have come to self-identify as entrepreneurs of
themselves, entering the labour market (rather than finding a job), and
making themselves marketable.
3
Each of these developments has posed
significant challenges to traditional approaches to the study of labour law,
occasioning much soul-searching on the part of scholars in the field.
4
This article is positioned as a contribution to debates regarding the crisis
in labour law, and, especially, to an ever-thickening strand of those debates
which looks to methodological innovation as offering a possible way
forward.
5
Scholarship in the field of labour law has a strong socio-legal
tradition ± in large part because normative arguments establishing the need
for special rules to regulate working relationships have tended to rest on
397
Economic Sociology (1998); N. Smelser and R. Swedberg (eds.), The Handbook of
Economic Sociology (2005, 2nd edn.); N. Bandelj (ed.), Economic Sociology of
Work (2009).
2 S. Frerichs, `Studying Law, Economy, and Society: A Short History of Socio-Legal
Thinking' (2012) Helsinki Legal Studies Research Paper no. 19, 6.
3 A. Hochschild and S. Garrett, `The Personalized Market and the Marketized Self' in
A. Hochschild, So How's the Family? And Other Essays (2013).
4 See, for example, G. Davidov and B. Langille (eds.), The Idea of Labour Law
(2011).
5 See, for example, A. Ludlow and A. Blackham (eds), New Frontiers in Empirical
Labour Law Research (2015); G. Davidov (ed.), Special Issue: `Labour Law
Research Methodologies' (2017) 33(1) International J. of Comparative Labour Law
and Industrial Relations; R. Dukes (ed.), Special Issue: `Labour Laws and Labour
Markets: New Methodologies' (2018) 27(4) Social & Legal Studies.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
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