TRADE UNIONS, THE LAW AND SOCIETY *
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01270.x |
| Published date | 01 May 1970 |
| Author | O. Kahn‐Freund |
| Date | 01 May 1970 |
THE
MODERN LAW REVIEW
~
Volume
33
May
1970
No.
3
TRADE UNIONS,
THE
LAW
AND SOCIETY
*
I
A
LIVELY
discussion has been conducted over the last few years
on
the impact of the law
on
labour relations. This discussion has
suffered from over-generalisation. Certain aspects of labour rela-
tions cannot be controlled by the law. The law is likely to be a
failure whenever it seeks to counteract habits
of
action
or
of
inaction adopted by large numbers
of
men and women in pursuance
of
established social custom, norms of conduct
or
ethical
or
religious
convictions. Policies to control spontaneous strike movements by
threats of penalties
or
civil liabilities are doomed to failure, and
what has happened
in
Western Germany and in Sweden since the
publication of the Report
of
the Donovan Commission has lent
further support to the attitude adopted by its maj0rity.l There
was little reason for the excitement caused in trade union quarters
by the so-called
u
penal
yy
clauses
in
the White Paper
In
Place
of
Strife.2
These clauses would have been unenforceable in practice.
In
a country in which statutes are deliberately couched in an
esoteric language invented by lawyers for the use of lawyers
it
is
difficult to rely
on
the educative role of legislation.
Most
legislation operates not by the lesson
it
teaches
or
the sermon
it
preaches but by the promise
of
rewards
or
the threat
of
depriva-
tions attached to its observance
or
breach, that is, by the expecta-
tion of its enforcement. Legal norms have their social effect
through legal sanctions, and sanctions cannot be applied to counter-
act the spontaneous conduct of amorphous masses.
They can, however, be applied to rsegulate the conduct of
organisations. The scope of the law grows as organisation in society
supplants spontaneity. This is a sociological commonplace, but
it
*
This h-with slight variations-the Gsitskell Memorial Lecture of 1970,
The Lecture
1
Report
of
the Royal Commission
on
Trade Unions and Employers' Associations,
2
Cmnd.
3888
(1969), paras. 93
et
seq.
delivered st the University
of
Nottingham
on
January 23,
1970.
WBE
mainly intended for non-lawyers.
Cmnd. 3623 (1968), Chap.
8.
241
VOL. 33
9
242
THE
MODERN
LAW
REVIEW
VOL
88
is worth remembering when discussing the role of law in labour
relations.
In
the area of the behaviour of trade
unions
to their
members or potential members the law can play a role.
I
am
concerned
to
show that it should do
so.
What
I
consider the need for legislation-let me emphasise it
at
the outset-does not arise from widespread abuses of trade
union
power.
The situation in this country today is not comparable
to
that in
the United States revealed in the 1950s by the investigations of
the McCle~an Committee
of
the SenateS which led
to
the passing
of
the Landrum-Griffin Act of 1059.' Nor is it comparable even
to the state of affairs in this country a century ago when the
first
of all the Royal Commissions
on
Wade Unions, the Erle Com-
mission, which reported in
1869,5
recommended those measures of
financial control which eventually found their way into the Trade
Union Act of 1871.
The inquiries initiated by the Donovan Commissione showed
that complaints about arbitrary expulsions, faked elections, finan-
cial
malpractices, etc., are very rare indeed. By and large, the
trade
union
movement in this country came out of
all
these
inquiries with a very
good
record. Once more (as
so
often) those
of
us
who are lawyers were taught the elementary
lesson
that the
law reports are the worst possible mirror of society. They convey
to the beholder a distorted image in which that which is marginal
appears
as
typical,
and
this may
be
one
of
the
reasons
why some-
times the judgments
of
lawyers
on
problems of
social
policy are
so
Misuse of trade union power is a rare phenomenon in this
country, but
it
can occur and
it
does.
The law, however, is con-
cerned with the marginal cases. This is where empirical social
scientists and lawyers
so
often fail to understand each other. The
lawyer
looks
at the marginal case, and the empirical social scientist
treats with contempt proposals to deal with anything which accord-
ing
to the statistics happens
only
rarely.
cc
But how often does
this happen
?,,
c'
But suppose it does happen
I
"-how often have
I
heard this dialogue and taken part in
it.
It
is the possibility of
a misuse
of
union power that is
on
my
mind far more than its
actuality-though, as
I
shall have to mention, actual cases are not
SllrPdShgly
wslped
and ill-founded.
s
On
the
McClellsn wttee,
see
Clyde W. Summers,
"
Amenam
Legislation
for
Union
Democracy (1969)
95
M.L.R.
373. Its full title was: Select Com-
mittee
on
Improper Activities
in
the Lsbor and Management Field,
end
it
msde threa
Reports:
85th Congr., 2nd
Sees.
No.
1254; 86th
Congr.
1st Sess.,
No.
631; 86th Congr. 9nd Sess.,
No.
1199.
4
Labor-Management (Reporting and Disclosure) Act 1969.
6
Eleventh end
Finel
Report
of
the Roysl Commission sppointed
to
inquire
into
the Organisstion and Rules
of
Tmdes Unions and Other Orgsnisstions,
H.M.S.O.
1869.
See
Workplsce Industrisl RBlstions.
An
Inquiry undertaken for the Roysl
Commission
on
Trade Unions snd Employers' Associstione. 1966, published
Msrch 1968, esp. pp. 123
et
rep.;
Nos.
6.54-6.63.
See Cmnd.
3623,
psrs. 619.
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