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Critical Labour Law: The American ContributionAuthor(s): Joanne ConaghanSource: Journal of Law and Society, Vol. 14, No. 3 (Autumn, 1987), pp. 334-352Published by: Wiley on behalf of Cardiff University

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JOURNAL OF LAW AND SOCIETY

VOLUME 14, NUMBER 3, AUTUMN 1987

0263-323X$3.00

Critical Labour Law: The American Contribution

JOANNECONAGHAN*

The American Critical Legal Studies Movement should need no introductionfor it is by now a well-established field of scholarship spanning almost everyconceivable area of contemporary legal study and finding for itself con-siderable

spaceand attention in

leadinglaw

journalsin the United States of

America. My object here is not to add to the ever-increasing list of generalaccounts and assessments of critical legal scholarship' but to explore in some

detail its method, objects, and achievements in the particulararea of labour

law. I choose labour law mainly because a considerable body of critical work

has developed in this area2 but also because I hope, by exploring the contoursof the contribution from the United States of America, to draw out the

strengthsand weaknesses of the criticalapproach and, by doing so, to suggestits value - if any - in the context of contemporary British labour law.

One word of caution must be given in relation to the grouping of variouswriterstogether under the general title of'critical legal theorists'. By this I do

not mean to suggest any absolute homogeneity; indeed, there are substantialdifferences between the various writers considered as to the nature of the

critique employed and the conclusions drawn, differenceswhich I hope this

study will reveal. By way of introduction, however, it is necessary to set the

scene by placing the debate within the context of contemporary labour law

and labour relations theory in the United States of America.

INTRODUCTION TO LABOUR LAW IN THE

UNITED STATES OF AMERICA

Any account of labour law in the United States of America must give

prominence to the passing and application of the National Labour RelationsAct 1935 (the Wagner Act). This controversial Act - a product of the NewDeal legislative response to the Depression - considerably distinguished theAmerican approach to collective bargaining from the British, at least until

recent years. For while the policy of the Wagner Act was to promote thedevelopment of collective bargaining directly by the creation of new legalrights and duties in workplace relations, such legal intervention in the Britishcontext is usually regarded as a phenomenon of the 1970s; before thatcollective bargaining in Britain was almost wholly determined by economic

strengthand not by legal rights.3

*Universityof Kent, Canterbury,Kent CT2 7NY, England.

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The legislative strategy for encouraging collective bargaining was to

increasetradeunion power by granting to employees a numberof legal rights:

Employees shall have the right to self-organisation, to form, join or assist labour

organisations, to bargaincollectively through representativesof their own choosing, and

to engage in concerted activities, for the purposes of collective bargainingor other mutual

aid and protection.4

The overtly pro-union legislation was received with considerable protest andresentmentby employers, some of whom launched an immediatecampaign ofdisobedience against the Act at least until its constitutionality was confirmed

by the SupremeCourt in 1937.5 Moreover, initially they had good reason tofear the effects of the Act: within about ten years the number of unionised

employees increasedfrom three to fifteenmillion, totalling thirty-fivepercentof the (non-agrarian)workforce. But the growth of tradeunionism was short-

lived and, in the view of critical theorists, the radicalpotential of the WagnerAct - if it existed - never became a reality. In the United States of America

today no more than about twenty per cent of the workforce are unionised.

Moreover, many of the rights originallyestablishedby the 1935 Act have been

considerably restrictedeither by statute or byjudicial doctrine.6In part, the criticallegal studiesapproachhas been an attempt to explain the

apparent failure of law to promote collective bargaining by highlighting the

ways in which law restricts worker participation in the bargaining process

while at the same time purportingto encourage it. But the main thrust of thecritical legal scholars' attack cuts much deeper: primarilytheirconcern is with

showing how the collective bargaining system and the ideology of 'liberal

legalism' as a whole both promote and legitimate worker subordination:

... the ultimate mission of collective bargaininglaw is to promote an ideology and evolve a

set of institutions that legitimate and reinforce socially unnecessary hierarchy in the

workplace.7

LIBERALISM AND INDUSTRIAL PLURALISM

There is no doubt that liberalism is the general target of the critical legalscholars' critique. What is more problematic is what the term 'liberalism'

implies for criticallegal scholars. As Ed Sparerhas pointed out, liberalism hason occasion beendefined so broadly by criticallegal theorists as to incorporatealmost all aspects of westernculture and political life.8 At the same time, theterm is commonly used - at least in the United States of America - as

synonymous with 'left' as opposed to 'conservative'or 'right'.Karl Klare, one

of the critical movement's leading protagonists, has expressly linked thenotion to the classical liberal political tradition of Hobbes, Locke, and

Hume,9 asserting that this philosophical tradition dominates mainstream

legal thinking and therefore it is this perspective which critical legal scholarsseek to critique.Within this frame of reference Klare and other critical labour

lawyers develop a 'liberal'theory1'0 f collective bargaining,a key requirementof which involves the acceptance of a pluralist frame of reference.1' This

pluralist perspective on labour law in the United States of America,

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characterised by Katherine Stone as industrial pluralism constitutes, she

has asserted, a single unified vision of collective bargainingwhich pervades

post-war labour law in the U.S.A.:

This vision is both a definition of what collective bargaining is, and a vision of the ideal

relationshipbetween unions and

managementin

societyas a whole. It has become so

pervasive in all thinking and writing about labour relations that, like the ambient air, it isalmost invisible.12

Both Stone and other labour lawyers engaged in the critical enterprisehave

built an intellectual construct of the vision by drawing upon the writing of

leading post-war American theorists.'3 The basic tenets of this construct

include: (i) a view of collective bargaining as a form of democratic self-

governmentwithin the workplace;(ii) a view of collective bargainingas a form

of privateorderingas opposed to public regulation; (iii) implicit in (ii)- a view

of law as playing a neutral and facilitative role in relation to collective

bargaining;and (iv) linking the ideas embodied above, a view of the collective

agreementas a binding contract between equal parties enforceable in law.

The critical legal scholars have drawn out the premises upon which these

view are based. For example, as Klare has pointed out, the assumption

underlying the legislative analogy is a view of the workplace as a place to be

governed and controlled.'4 Likewise, Stone has demonstrated how the joint

sovereignty of theworkplacesharedby managementand unions is illusory in

that it gives way to retained management rights . The realm of jointsovereignty is no more than a miniature island of democracy in a largeautocratic ocean .'5 The critical legal scholars have also pointed out that a

view of law as neutral and facilitativeis dependenton a distinction betweenthe

'private'orderingof labour relationsby the partiesthemselvesand the 'public'

regulations of that ordering by law. The critical legal project has sought to

challenge the coherence of this distinction and, by so doing, to revealthe law's

far from neutral role in labour relations. This involves among other things a

rejectionof contractualism- the unifying link underlyingthe pluralistvision.For, while pluralismviews the 'contract' between management and labour as

embodying the values of democracy, participation, and consent, a critical

perspective exposes it as a legal mechanism designed to control rather than

facilitate industrial relations.'6 Let us explore this critical perspective more

fully.

THE CRITICAL APPROACH TO LABOUR LAW

The attack of critical legal scholars on the liberal account of the role of law inindustrial relations has taken place on two broad fronts. First, it has been

alleged that liberal theory fails to meet its own ends: industrial democracy is

not realised by collective bargaining. Secondly, it has been argued that not

only does liberal theory fail to meet its own ends, but it also embodies andconceals values and assumptions which undermine these apparent ends. In

otherwords, the liberaltheory of collective bargaining operates as an ideologywhich prevents people from either recognising the industrial world as it is or

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envisaging alternative work structures. To this extent the critical legaltheorists rely considerablyon the Gramscian notion of hegemony wherebythe

oppressedare induced to 'consent' to theirown exploitation becausethey see itas part of the common-sense nature of theirexistence. In the context of labour

relations, hierarchy and managerial authority are regarded as natural andinevitable rather than socially constructed, and the operation of law

encourages this belief.Both approaches outlined above appear to various degrees in the work of

the critical labour law theorists. Staughton Lynd, for example, employed thefirst approach when he argued that the collective contract between manage-ment and labour was not a 'fair' one because the law failed to guaranteeequality of bargaining power although purporting to do so. Proponents ofthe second approach, in contrast, have focused both on highlighting instances

of liberal incoherence and contradiction'8 and on articulating the con-servative values which liberalthought conceals. 9This is not to say thateither

approach is pursued exclusively by differentwriters or that the line betweenthe two approaches is easy to draw. Stone, for example, has consciously usedboth approaches.20 arguingon the one hand that liberaltheory fails to deliverthe goods promised and, on the other hand, that liberal theory is incoherent

anyway. For purposes of present analysis, however, I will consider the two

approaches separately.

THE LIBERAL THEORY OF COLLECTIVE BARGAINING FAILSTO ACHIEVE ITS OWN ENDS

The method of critical legal scholars here has involved identifying the ends oflabour law and demonstratinghow the legal process fails to meet them. So, for

example, Stone has identified the end of joint sovereignty and thenshown how in realitycollective bargaininglaw does not achieve it.2' Likewise,

Lyndhas

emphasisedthe

importanceof the worker

rights granted bythe

National Labour Relations Act and then has argued that these rights havebeen undermined in practice:the gap between paper rightsand real rightshas thereby been exposed.22 Lynd has applied this critical method to the so-called 'quid pro quo' doctrine which characterises the collective contract.23

According to this doctrine, the workers relinquish the right to strike in

exchange for management's promise to submit contract grievances toarbitration .24Thus, industrialpeace is promoted by avoiding strikeaction ina fair exchange between equals. In reality, however, as Lynd has pointed out,

the exchange is far from fair for while workers generally give up the right tostrike over all grievances, management's obligation to arbitrate is usuallylimited to grievances governed by the collective contract. Nor can the

exchange be characterised as one between equals, for although labour law

purports to redressthe inequality of bargaining power between managementand labour, in fact it actually increases it by maintaining a distinction in lawbetwen 'mandatory' and 'permissive'subjects for bargaining purposes whichreinforces rather than limits managerial power.25 Lynd has therefore

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concluded that the 'quid pro quo' doctrine as it stands conceals a funda-mental unfairness in American labor relations 26 which the law should not

permit.As an account of the failure of law to live up to its ideals, Lynd's analysis

is uncontroversially accurate. However, his approach was hedged withlimitations. First and most obviously, any account which seeks to identifyends is vulnerablein that the ends themselves are not always easy to ascertainand may be challenged. The controversial nature of the ends of the WagnerAct, which Lynd himself has admitted,27 constitutes a good example.Likewise, in the context of British labour law, evaluations of the operationand success of the Unfair Dismissal and Redundancy Payment provisionshave been similarly complicated by an apparent confusion of aims.28

Secondly, Lynd's approach has tended to overemphasise the importance of

law by suggesting that the removal of legal obstacles or the addition oflegal protection would resolve the situation. For example, Lynd has suggestedthat the 'quid pro quo' doctrine can be utilised in the fight againstunilaterally imposed investment decisions by expanding the quid or

restricting the quo without telling us exactly how law, if at all, coulddo this.29 Certainly Lynd's analysis, while exposing the inadequacy of

present legal remediesin the context of managementinvestmentdecisions, hasnot even begun to acknowledge the limits of law, either tactically or

theoretically.The result, then, is not a critique of liberal theory but an attempt to realise

it.30 As such it can hardly be regardedas in any way new - however useful. It

seems, then, that if anything original is to emerge from the critical study of

labour law it must come from the second approach:the study of labour law as

ideology.

LABOUR LAW AS IDEOLOGY

1. Examples of Ideology

Critical legal scholars' analysis of labour law as ideology has relied on two

closely-related projects. First, the critical theorists have taken the ends

analysis of liberal theory (discussed above) a step further by exploringits underlyingassumptions. According to Klare the endeavour is to uncover

the moral and political vision embedded in the doctrines thus revealinga powerfully integrated set of beliefs, values and assumptions which re-

inforce the dominant institutions and hegemonic culture of our society . 3

Secondly, the theorists have sought to demonstrate the incoherenceof labourlaw and the contradictions which it relies on and vainly attempts to resolve.Such incoherence revealsboth the indeterminatenature of labour law and its

manipulability.The critical labour law literature is rich with applications of both these

techniques, but for present purposes I select just a few examples todemonstrate both the potential of critical study of labour law and its

problematic nature.

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(a) Hidden Meanings

Klare's work is dominated by explorations of the hidden messages in liberal

labour law, an interesting example of which is his impressive analysis of the

images of work and workers governing the Supreme Court decision in the

notorious Yeshivacase.32 In this case the SupremeCourt decided that facultymembersat a private universitywere not employees for the purposes of theNational Labor Relations Act and, therefore, not entitled to its protection.The court arguedthat the degree of control over the nature and conditions ofwork enjoyed by academicswas more consistent with the role of management,despite evidence that very real differences of interest existed between the

faculty members and the university authorities (for example, as to pay and

job security). In the course of deciding that faculty members were not

employees ,Klarearguedthat [t]heYeshiva decision speaksvolumes about

the image of work and workers embedded in American labor law .33He thenshowed how the picture of workplace relations conjured up by Yeshiva wasone of hierarchy and top-down command while the image projected ofworkers was one of powerless, non-creative, self-interested individuals. Byrevealing such a conception of work and workers and excluding academicsfrom it by virtue of their very real participation in workplace governance,Klare contended that the Supreme Court implicitly admitted that collective

bargaining law presupposes and promotes management hierarchy and

employee subordination, despite its apparent commitment to industrialdemocracy.34Moreover, Klare's approach has not been limited to an exposeof the hidden prejudices which motivate a judge's decision in a particularinstance. By uncovering unarticulated values, Klare constructed an inner

logic of collective bargaining 35which explains not just individual decisionsbut the long-termdevelopment of liberal legal doctrine.36A good example ofthis technique is his analysis of the history of the labour injunction as a tacticto enjoin strikes.37Briefly,the legal background is as follows. Until the NewDeal

legislationof the 1930s the labour

injunctionwas a

frequently-usedinstrument in the suppression of strike action. Its removal from the federal

sphere by the Norris-La-Gardia Act 1932 representeda powerfully symbolicgesture of the law's withdrawal from labour affairs, a gesture which was

recognised and confirmed in the post-war era despite the more overtly anti-labour tone of the Taff-Hartley Act 1947. In 1970, however, in the famous

Boys Market case38the United States SupremeCourt resurrected the labour

injunction in order to enjoin a strike in violation of a no-strike clause,

overridingthe Norris-La-Gardia provisions by an 'accommodation' with the

policy of the Taff-HartleyAct.Klarepointed out the incongruityof the labour injunctionin a liberalvision

which posits the premise of law's externality to labour affairs and examinedthe justices' attempts to accommodate that vision by emphasising the

injunction's role in promoting the sanctity of contract and the primacy of

private arbitration. But, as Klare continued, the liberal response fails to

explain whythe labour injunction re-emergedwhen it did; why, for example,did the SupremeCourt reject its use in previous cases?39Such an answer, he

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argued,could only be gleaned by an exploration of the law's inner logic whichreveals that legal repressionof labour activities is the inevitable end of liberal-ism. In the context of the Boys Marketcase the inevitable resultof treatingthecollective agreementas a highly formal bindingcontract is the need for law tointervene directly to enforce it, despite the fact that the purpose of the

contractual form is to keep the law out and facilitate the orderingof industrialrelations by the parties themselves. In his analysis of Boys Market and ofYeshiva Klare has thus identified a continuity between co-optation and

repressionthat reveal the conservative underpinningsof liberal thought .40As the above account shows, the ideological impact of labour law relies in

part on the apparentlyunobtrusive nature of its underlyingvalues, accordingto Atleson values which are all the more pervasive because of theirunarticulatedquality ,41but also on the attractivenessof the values it appears

to embrace. Herein lies the significanceof the contractual interpretationof thecollective agreementwhich the critical legal theorists have identifiedas crucial

to the pluralistvision. Byconstruingcollective negotiation as a legally bindingcontract, liberal theory highlights both the consensual nature of collective

bargainingand the neutralityof law. However, the contention of critical legalscholars is that, while appearingto embrace the value of consent, the contractmodel actually subverts it by presuming an equality of bargaining powerbetween management and labour which does not exist in practice. Moreover,

the neutralityof law is compromised by the fact that the law actually helps topromote that inequalityin a number of ways. First, and most importantly, the

law inhibits industrial action by restricting the right to strike despite the

guarantees explicit in the Wagner Act. Restrictions have been imposed both

by subsequent legislation - for example, the outlawing of sympathy action bythe Taff-Hartley Act - and through judicially developed doctrine.42 As thecritical legal theorists have pointed out, suchextensive restrictionsunderminethe credibility of the pluralist model which regards the right to strike as a

necessary prerequisite to effective collective bargaining.43Secondly, the lawhas developed an institutional structurewhich, by focusing on the importanceof private arbitration and developing a principleof institutional deference to

arbitrative methods, promotes industrial peace at the expense of worker

rights.44 Thirdly, law promotes inequality between management and unions

by restrictingnotjust the effectivityof collective negotiation but also its scope.The focus here is on thejudicially developed distinction between 'mandatory'and 'permissive' subjects for purposes of collective bargaining. This dis-

tinction, it has been argued, not only prevents unions from negotiating on

matters which are of most importance to the workforce - for example,investment decisions and plant closings - but by reinforcingand protecting arealm of management-retained rights it undermines the pluralistprinciple of joint sovereignty.45

It is for these reasons that Klare has concluded that contract is the legalform by which organised employees consent to their own domination in the

workplace .46It is the chief ideological instrument of workerco-optation andthe ultimate legitimation of liberal collective bargaining.

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strength of the collective is obscured while the apparent individual/collectiveconflict is reinforced.A critical perspectivehas demonstrated the contingentnature of such apparently inevitable conflicts and, by doing so, has revealedtheir ideological power.

The critical legal approach to labour law as ideology is undeniablypersuasive. However, initial attraction must be temperedby an awareness ofthe problematicnature of this ideological emphasis:the merits of criticalstudyof labour law must be placed in the context of its failings.

2. Problems with LabourLaw as Ideology

Critical legal scholars' analysis of labour law as ideology is limited andundermined by three fundamental problems. First, the analysis relies on

exposingthe

contradictions and incoherence within liberal labour law whileby no means escaping that charge itself. Secondly, by limiting itself to a studyof legal doctrine, the analysis implicitly reinforceswhat it seeks to deny - the

autonomy of law. Thirdly- and in part as a result of the limitations identifiedabove - the critical legal literatureon labour law tends to make unsupportedclaims about the impact of law on the industrialworld.

(a) Reproducing Contradiction and Incoherence

The critical legal writers, while identifying the contradictions within liberaltheory, have sometimes failed to escape them themselves. Stone, for example,while emphasising the incoherence of the form/substance dichotomy never-theless has appealed to it when urging a substantive interpretationof labour

relations .53 Similarly, her proposed remedy for industrial disputes - the

shifting of labour relations problems from the private to the public sphere so

enabling the workers to struggle in the arena in which their strength is

greatest- the national political arena 54 relieson an unproblematicallyfixeddistinction between

publicand

privatewhich contrasts

sharplywith a

theoretical method which seeks to demonstrate the contingency of such

distinctions. 5In part this confusion in critical legal writing can be explained as a failure

to transcend the reifiedcategories through which liberalism views the world.

But, more significantly, it stems from a deeper theoretical ambiguity within

critical legal thought about the nature of the contradictions which theyseek to identify. It is by no means clear, for example, whether Kennedy's

fundamental contradiction between self/other is to be regarded as an

artificial construct or an insoluble problem of the human condition.56 Thisambiguity in turn can be traced to what Hutchinson and Monahan haveidentified as a disagreement within the critical legal movement about the

pervasivenessof contingency in law and life .'57 f labour law is based on a setof contingent political assumptions about the nature of labour relations, itbecomes the task of critical legal theorists to steer a perilous course between

reinforcing the contradictions they seek to identify and descending intonihilism.

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(b) The Focus on Legal Doctrine

A major limitation of critical legal research on labour law has been its

almost exclusive attention to legal doctrine abstracted from its social con-

text. This focus reflects the critical legal method generally and its concern

with the analysis of legal doctrine with a view to 'decoding' it, that is,to demonstrate how and why law acts as ideology. The approach can take theform of analysing the impact of a particular case (for example, Klare'swork on the Boys Market58 and Yeshiva59decisions) or it can involve

a re-examination of a body of legal doctrine (for example, Stone's workon industrial pluralism60 or Atleson's work on the development of the

'subjects'doctrine61). In form, at least, as Munger and Seron have pointedout,62 a piece of critical legal scholarship does not appear to be so

very different from a mainstream work. How, then, can their methods be

distinguished?Trubek has argued that the distinction turns on the purpose of study.

Critical legal scholars focus on legal doctrine to discover what the law does,not what it is. Therefore, [t]o suggest that somehow Duncan Kennedy and

Karl Klare are doing the same thing that Langdell and Willison did is just

nuts. 63Trubek has made this distinction to absolve critical legal work fromthe charge of anti-empiricism but it is nevertheless problematic in partbecause, on Trubek's own admission, critical legal scholarship has not really

embarked on a seriousexploration of what the law does, but more particularlybecause the focus on legal doctrine has made certain assumptions about what

the law is - the method itself contains certain hidden messages not made

explicit by the critical writers. This is in essence the substance of Munger and

Serons' critique.64In particular they emphasise the limited focus of critical

legal scholarship on traditional legal sources - cases, statutes, rules. The

resultant limitations are more than apparentin the context of labour law. The

critical scholars of labour law undoubtedly suffer from the traditional

obsession in the United States of America with the centrality of judicial

decision-making- in this instance the decision-making of the SupremeCourt.

They are, therefore, immediately guilty of the old Realist-identified sin of

Uppercourtitus .65This narrowness of focus has two important implications. First, it tends to

exaggerate law's importance by assuming rather than demonstrating a

significant impact on industrial relations. Secondly, it implicitly defines 'law'in very narrow terms. 'Law' is presumed to consist primarily of SupremeCourt decisions interspersedwith federal statutes, while other aspects of the

legal process - the activities of the lower courts, the role of practisinglawyers,the importance of grievance procedures, and private arbitration - are

neglected.As a result of this assumption of thecentralityof certaininstitutions

(appellate courts) and personnel (judges), the focus of the critical attackbecomes law in the abstract rather than law in the context of everyday labourrelations. For example, in Klare's analysis of Yeshiva66 he focus was on the

ideological power of internallegal argumentabstracted from its actual impacton collective bargaining practice. Charges of irrelevance and marginality

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inevitably followed, while the debate generated has tended to collapse into

endless wranglingover the use of legal sources.67Moreover, not only does theexclusive focus on legal doctrine misdirect the debate, more importantly it

presupposes a notion of autonomous legal doctrine which is strangely out of

keeping with an approach which seeks to demonstrate otherwise. So, for

example, Klare's explanation of Boys Market68 is potentially misleadinginsofar as it suggests that the decision is purelya product of liberallegal logic.Likewise, his attempt to explain Yeshiva69 n terms of the repressive legaltendenciesunderlyingthe liberal theoretical frameworkupon which the courtrelies is deficient in its failure to address the 'external' factors - in this

case contemporary economic circumstances - which make such a decision

more likely. Klare's concern is to show how legal ideology operates

systematically to influence the political choices which judges are required

to make in a way which makes such choices appear 'objective' and 'correct'.Part of this project must surely involve not just an expose of the politicalcontent of legal doctrine but also some attempt to explain the relationshipbetween law and other forms of social power. Why, for example, does law

come to reflectand reinforceparticularsocial values?If law is to be regarded,as Klare has maintained, as part of the constructed totality 70 of social

life, it must not be studied in splendid isolation. The concern of critical legalscholarsto avoid the economism of orthodox Marxism 'v should not lead

instead to a misplaced focus on legal ideology abstracted from its socialcontext.

Finally, the focus of critical legal theorists on legal doctrine has ignored the

powerful ideological power of other aspects of the legal process: court

procedure,legal practice,and so on. The narrowconcept of'law' employed bythe critical writers thus leads to a neglect of important ideological sources

while at the same time the focus on doctrine alone produces, as Munger and

Seron have pointed out, a body of research that reinforces the very

assumption its sets out to demystify, i.e. that doctrine develops auto-

nomously .72 In defence of doctrinal analysis no doubt the critical theoristswould rely on some conception of the 'relative autonomy' of law. Indeed,

Klare has explicitly relied on this notion in his analysis of the Wagner Act.73However, it cannot be denied that within the labour law literature the

problems associated with relative autonomy and with concepts of legaldoctrine and discourse have been largely ignored.

(c) The Gap Between Law and Life

The expose of hidden values in labour law has often been accompanied byproblematic claims about the impact of these values and of law generally.Klare has persistentlyargued that legal discourse has a significant impact on

our way of thinking and that in the context of labour law the 'legalconsciousness' developed by judicial decision-making has played an import-ant part in influencingthe attitudes and actions of those involved in industrial

relations. Klare's approach can usefully be contrasted with the more limited

claims of Atleson by looking at the latter's analysis of the values underlying

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the 'subjects' doctrine and Klare's response to it.74 While Atleson's projecthas been simply to reveal the unstated assumptions which motivate legal

argument surrounding the 'subjects' doctrine, Klare's enterprise has beenmuch more ambitious. For him:

The social function of significant legal ideas like the management prerogativesdoctrine isto induce us to accept a certain view of the possibilities of and constraints upon human

freedom, to induce us to believe in the justice, or at least the inevitability of existinginstitutional forms .... In sum, the purpose of the management prerogativedoctrine is to

deny us access to knowledge about our past and political imagination about our future.75

As has been pointed out frequently in the context of critical legal studies

generally, such claims make an enormous leap from the realmin which legalideology is produced, and where it forms the dominant discourse, in courtsand law offices, to the realm of wider society .76 This leap involves two

particularlycontroversialassumptions. First, it assumes that legal ruleshave adirectimpact on social beliefsand actions - in thiscontext on the attitudes and

behaviour of social actors in the industrial world. Secondly, the assumptionimplicit in much of critical study of labour law is of the application of law as a

passive body of workers who automatically internalise its messages, an

assumption characterisedby Trubek as the transmissionbelt model . So,for example, Klare has argued that the political values embodied in liberallabour law have been internalisedby the labour movement, thus legitimating

existing industrial order.'78Likewise, Stone has maintained that industrialpluralismcreates an illusion of consent by workers to industrial conditionsthat legitimatetheconditions that result .'79 uch claims about the hegemonicquality of labour law requirean exploration which the critical legal scholarshave not as yet embarkedupon. Empiricalevidence is requiredto support, for

example, the assumption that unions are influencedby the ideological contentof collective bargaining law. As Trubek has pointed out, the critical study oflabour law must move beyond an isolated study of doctrine in order to

investigatethe social construction of

meaning throughlaw in law

firms,board rooms, union halls and on the shop floor .80 Moreover, the need forsuch empirical evidence is central, not peripheral, to the critical project andtherefore should not be relegated to a footnote.81 The transmission of

ideology raises theoretical issues also. Critical scholars need to confront and

explore the process by which ideology is mediated. This demands theconstruction of a framework which incorporates both the processes of

ideology mediation - including the mass media, popular culture, and publicopinion - and the dynamics of the workplace. Attention might be drawn here

to alternativeanalyses of law's role in industrialrelations, for example, HarryArthurs' application of legal pluralist theories to workplace regulation82- an analysis which has impressively challenged any transmission belt

explanation of law's impact on labour relations and at the same time openedwide for redefinitionthe concept of law employed by critical legal scholars. Ina recentwork83Klarehas acknowledged the force of some of thesearguments,but his attempts to answer them have continued to assume rather thandemonstrate a hegemonic effect. As Alan Hunt has stated:

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1. Effortsat Reconstruction:Lynd and Stone

Attention to the problems of reconstructionin labour law can be found in the

work of both Stone and Lynd. In part it is implicit in the reliance on the

importance of demonstrating truth and falsity. According to Stone, the

starting point for any new approach is a more accurate description of theindustrial world .89 However, both writers have also taken some tentative

steps towards thedevelopment of practical programmesfor social change. For

example, Stone has called for the establishment of a public forum for theresolution of labourdisputesand also arguesfor a redefinitionof the incidenceof ownershipin order to remedythe structuralinequality in the management/labour relationship. Lynd's suggestions have not been so explicit but they doinvolve an uneqivocal commitment to the notion of legal rights as a strategyfor promoting labour interests 90 and the call for a legal framework which

realises rather than subverts the 'quid pro quo' doctrine.91What distinguishes the approach of Lynd and Stone is their apparently

unproblematic reliance on legal solutions to labour problems. Just as theyhave overemphasised the rhetorical importance of law, so they have also

exaggerated its instrumental use. This can be attributed almost entirely totheirfailure to place lawin any social or economic context. For example, in the

case of investment decisions or plant closures, it is quite absurdto discuss legalstrategywithout addressingthe economic context in which such decisions take

place. Lynd'scall for the freedom to strike over plant closures, with its implicitsuggestion that this in itself will win for workers the participation in decision-

making which they demand, seems platitudinous and tame in the light of the

year-long miners' strike in Britain where the deciding factor was not the legalfreedom to strike but the inevitability of superior strength of management,capital, and state. What the disputes over plants closures reveal- which Lyndand Stone have merelyhinted at - is that the effectivityof collective bargainingis in large part dependent upon an expanding economy. In times of economic

depression the conflict between capital and labour becomes more apparentand it is due to this as much as to the incoherence of liberal theory that

inevitably the strains begin to show in the surfaceplausibility of industrial

pluralism.92 In other words, economic circumstances quite plainly have adirect effect both on the regulatoryand the ideological operation of collective

bargaining.Moreover, insofar as a Lynd-Stone type of programmerelies on law, it also

relieson liberalism: t does not rejectliberalism,it merelyadmonishes it for itsfailure to deliverthe goods promised. For example, Stone has called for a legal

framework which will realise the liberal premise of joint sovereignty93 andLynd has demanded a real quid pro quo .94 Inevitably, therefore, thecontradictions and conflicts within liberal theory also characterise their

programme for change.'95

2. KarlKlareand the Buildingof a New Labour Vision

Like Stone and Lynd, Klare's programme for social change has involved in

part revealing the reality of industrial life which liberal thought conceals. But

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Klarehas accompaniedthis processof deconstruction with a call for action:

Radical labor activists must help to forge and disseminate an entirely new

political vision . 9. 6 However, Klare's 'ision does not rest on a negation ofliberalism alone. He has set out the values which guide his thinking:

My fundamental assumptions include a belief in the feasibility of democratic self-management of the workplace by the workers; a belief in the justice and desirability of

giving a dominant voice respecting the organisation and purposes of work and the

disposition of the productsof labor to those who performwork;a belief that work can and

should provide dignity and meaningto life, that it can and should be a mode of expression,

developmentand realisation of the human self;and the belief that the highest aspirationof

a democratic culture should be to generate, nurture and encourage in all people the

capacity for self-governance and the fulfillmentof human potential. 97

Put more briefly,Klare is committed to an idea of industrialdemocracywhich

rejectsthe right of capital to govern and control, and to a view of work as aform of self-expression, though acknowledging its 'alienated' nature in

capitalist society. Though many of the aspirations expressed in critical legal

writinghave not been well receivedbycritics(Schwarz,forexample, ridiculingthe impossible Eden 98of critical legal studies and Johnson dismissing the

critical legal studies programme as platitudinous 99) I am neverthelessattracted to Klare's idealism because in the context of the critical study of

labour law it provides the sharpest insights, the richest ideas, and the clearest

vision to be found. Klare does not share the blind faith of Stone and Lynd in

law'semancipatory potential, but emphasisesthat law, likework, is 'alienated'

in capitalist society.100 In other words, Klare has recognised that law is to

some extent shaped by capitalist social relations and thus implicitly suggeststhe need to explore the natureof that interaction. Moreover, he is aware that it

is not enough to simply assert a connection between law and other social

phenomena and then, on an assumption of relative autonomy, explore the

significanceof law in isolation from them. Insofar as he has acknowledged he

limits of theories of relative autonomy, 1o0 the need for empiricalevidence of

ideological influences,102 and the limits of law in capitalist society,103Klarehas come nearer than any other critical labour law writerto plotting a course

for future social change. Such optimism must be expressed with some

reservation,however, for while acknowledging the need to widen the scope of

thecriticalprojectKlare has not yet begun to do so. Thus, the problemswhichlimit the explanatory potential of the critical study of labour law reproducethemselves in the project of reconstruction. In particular, the critical attemptto bring about change by painting a more accurate picture of the industrial

world is based on the same assumption about the effectivityof legal ideologywhich characterises the critical analysis of legal doctrine. If Klare wishes to

transform through critique he must give more serious thought as to how his

messages can be transmitted.

3. ConcludingNote

Not wishing to end on a negative note, I want to emphasise that my

exploration of the critical labour law terrainhas been an exciting one, though

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not without its disappointments. Nor has it lacked the power to inspire. In

particular,Klare's work could aid and inform a critical legal approach to the

study of labour law in Britain,for it is not misguidedto focus on the role of law

as ideology, nor is it pointless to ask questions about judicial reasoning and

decision-making. More importantly, the critical study of labour law, despiteits weaknesses (which are hardly insurmountable) does possess a 'liberating'

potential which distinguishes it from much of the 'law in context' work which

characterisesBritish labour law literature- for it not only highlights the gapbetween means and ends, aspiration and actuality, but it also asks questionsabout why such a gap exists. Indeed, as Trubek has pointed out, it is a keyconcern of the critical legal project to promote a New Realism which

recognises that gaps between legal ideals and legal behaviour, and between

legal norms and social structure,are inherent and fundamental features of the

life and consciousness of liberalsociety .104From this perspectiveit becomesclear that the liberal project - the attempt to reconcile means and ends - is

futile because it is in the very nature of law that such gaps should exist. Theyare neither puzzling nor anomalous but part of law's very essence. 05

NOTES AND REFERENCES

SSee, for example, A. Hunt, The Theory of Critical Legal Studies (1986) OxfordJ. Legal

Studiesp. 1;Critical Legal Studies Symposium (1984) StanfordLaw Rev. p. 1. For a sampleof British critical legal scholarship see (1987) 14J. Law and Society pp. 1-197.2 The critical labour law literatureof the United States of America is extensive. Of necessity,

therefore, I have focused mainly though not exclusively on the work of Karl Klare.

3 This statement assumes the traditional 'abstentionist'characterisation of British labour law.

Critical labour law problematises such a characterisation. See especially, K. Klare, The

Public-Private Distinction in Labor Law (1982) University of Pennsylvania Law Rev.

p. 358.

4 National Labour Relations Act 1935, 57 (original form).

s National Labor Relations Board v.Jones &LaughlinSteel Corporation301 U.S. 1[1937].For

an account of reactions to the Wagner Act see Klare, Judicial Deradicalisation of theWagner Act and the Origins of Modern Legal Consciousness 1937-1941 (1978) 62

Minnesota Law Rev. p. 265.

6 For example, the restrictions on trade union activities imposed by the Taff-Hartley

(Amendment) Act 1947. See also the judicially-developed 'subjects'doctrine - N.L.R.B. v.

WoosterDiv. of Borg-WarnerCorporation356 U.S. 342 [1958].

7 K. Klare, Critical Theory and Labor Relations Law in The Politics of Law - A

ProgressiveCritique(1982; ed. D. Kairys) p. 65.

8 E. Sparer, Fundamental Human Rights, Legal Entitlements and the Social Struggle: A

Friendly Critique of the Critical Legal Studies Movement (1984) 36 Stanford Law Rev.

p. 509 at p. 516.9 Klare, op. cit., n. 5, p. 276, n. 38.

10 The concept of 'liberalism'employed by critical legal scholars is extremely ambiguous and

its relationship with 'classical political liberalism' problematic. Moreover, it necessarilyexcludes much of'neo-liberal' theory- for example, the work of Hayek or Milton Friedman.

Klare has stated that the critical target is sophisticated liberalism , that is, that branch of

liberal thinking which accepts and defends collective bargaining as the proper way of

conducting industrial relations. (K. Klare, Labour Law as Ideology: Towards a New

Historiography of Collective Bargaining Law (1981)4 IndustrialRelations Law J. p. 450 at

p. 455.)

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SFor a useful account of differentperspectiveson industrialrelations, see Bill Rees, Frames

of Reference and the Public Interest in Labour Law and the Community 1982; eds. K. W.

Wedderburn and W. T. Murphy) p. 129.

12 K. Stone, The Structure of Post-War Labor Relations (1982) 11 New York UniversityRev. Law and Social Change p. 125.

'3 Klarehas listed Archibald Cox, John Dunlop, and David Feller as characterisingthe liberal

perspective;Klare, op. cit., n. 10, p. 454.14 Id., pp. 458ff.

15 Stone, op. cit., n. 12, p. 131.16 The model of pluralism constructed is far from unanimously embraced, not least by

'pluralists'themselves. See, for example, the objections of David Feller and Julius Getman

to Stone's work in the Colloquium in (1982) 11 Newi YorkUniversityRev. Law and Social

Changepp. 136 and 133.

17 S. Lynd, Investment Decisions and the Quid Pro Quo Myth (1979) Case WesternRes.

Law Rev. p. 396.

18 For example, see Klare, op. cit., n. 3.

19 For example, see J. Atleson, Valuesand Assumptions n American LaborLaw (1983).20 K. Stone, The Post-WarParadigmin American Labor Law (1981)90 YaleLawJ. p. 1509.21 Id.

22 S. Lynd, Government Without Rights:The Labor Law Vision of ArchibaldCox (1981)4

Ind. Rels. LawJ. p. 483.23

Lynd, op. cit., n. 17.24 Id., p. 396.

25 Supra, n. 6. For a detailed consideration of the 'subjects' doctrine, see J. Atleson,

Management Prerogatives, Plant Closings and the N.L.R.A. (1982) 11 New York

UniversityRev. Law and Social Changep. 83.26 Lynd, op. cit., n. 17, p. 410.

27 See Lynd's account of the Wagner Act's intent: Lynd, op. cit., n. 22, pp. 483ff.28

See, for example, B. Fryer, The Myth of the Redundancy Payments Act (1973) 1Ind.Law

J.p. 1.29

Lynd, op. cit., n. 17, pp. 423ff.

30 An attempt which cannot succeed because it fails to explain why a gap between 'ideal' and

'actual' exists in the firstplace. Lynd's strategy is well-intentioned, but short-sighted.31 Klare, op. cit., n. 7, p. 73.

32 N. L. R. B. v. Yeshiva University444 U.S. 672 [1980];K. Klare, The Bitter and the Sweet:

Reflections on the SupremeCourt's Yeshiva Decision (1983) Socialist Rev. p. 99.

33 Id., p. 103.

34 Id., pp. Illlff.35 Klare, op. cit., n. 17, pp. 73ff.

36 This is not just a concern of Klare's. Stone has lamented the inability of liberal theory to

provide an internally consistent basis for judicial decision and attempts to reinterpret

post-war legal doctrine through her critique of industrial pluralism. (Stone, op. cit., n. 20,

p. 1516.)

37 Klare, op. cit., n. 7, pp. 69ff.

38 Boys Market Inc. v. Retail ClerksLocal 770, 398 U.S. 235 [1970].

39 For example, Sinclair RefiningCo. v. Atleson, 370 U.S. 195 [1962].

4o Klare, op. cit., n. 32, p. 105.41 Atleson, op. cit., n. 19.

42 For example, the judicially implied 'no strike' clause in collective agreements in Local 174,

Teamstersv.Lucas Flour Co. 369 U.S. 95 [1962];GatewayCoal Co. v. U.M.W. 414 U.S. 382.

43 This is certainly the philosophy of the N.L.R.A. and can be tracedin U.S.A. labour historyto Holme's famous dissenting opinion in Vegelahnv. Guntner167Mass. 92 [1896].The New

York University Colloquium revealeda contemporary pluralistconcern here, op. cit., n. 16;see in particular,David Feller at p. 139.

44 See especially, Stone, op. cit., n. 20.

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45 Supra, n. 25. Kahn-Freund observed that the American plant agreement leaves to the

employer little . . . except the act of hiring , suggesting that the scope of bargaining is

greaterin the U.S.A. than in Britain.O. Kahn-Freund, Labourand the Law (2nd. ed., 1977)

p. 125.

46 Klare, op. cit., n. 7, p. 72.

47 R. M. Unger, Knowledgeand Politics (1975).

48 Klare, op. cit., n. 3, p. 1416.49 Id.

so Stone, op. cit., n. 20.s5 Kahn-Freund, op. cit., n. 45, pp. 242-3.

52 Employment Protection (Consolidation) Act 1978(as amended by Employment Acts 1980

and 1982)ss. 58, 58A.

3 Stone, op. cit., n. 20, p. 1517.

s4 Id., p. 1580.

ss See also, Alan Hyde's account of the distinction between the 'political' and 'economic'

activities of trade unions: Alan Hyde, Economic Labor Law v. Political Labor Relations:

Dilemmas for Liberal Legalism (1981) 60 Texas Law Rev. p. 1.

56 For furtherelaboration of a difficultconcept see Hunt, op. cit., pp. 20ff.

s7 A. Hutchinson and P. Monahan, Law, Politics and the Critical Legal Scholars: The

Unfolding Drama of American Legal Thought (1984) 36 StanfordLaw Rev. p. 226.

s8 Klare, op. cit., n. 7.

S Klare, op. cit., n. 32.60 Stone, op. cit., n. 20.61 Atleson, op. cit., n. 25.

62 F. Mungerand C. Seron, CriticalLegal Studies versus Critical LegalTheory:A Comment

on Method (1984) 6 Law & Policy p. 257.

63 D. Trubek, Where the Action is:CriticalLegalStudies and Empiricism (1984) 36 StanfordLaw Rev. p. 575 at p. 586.

64 Munger and Seron, op. cit., n. 62.

65 J. Frank, Law and the Modern Mind (1949).66 Klare, op. cit., n. 32.67 See in particular the long exchange between Klare and Finkin (opposing the critical

approach): M. Finkin, Revisionism in Labour Law (1984) 43 MarylandLaw Rev. p. 23;K. Klare, Traditional Labor Law Scholarship and the Crisis of Collective Bargaining:A

Reply to Professor Finkin (1985) 44 MarylandLaw Rev. p. 731.68 Klare, op. cit., n. 7.69 Klare, op. cit., n. 32.

70 Klare, op. cit., n. 7, p. 66.71 Klare has stated his position as follows: My work has been written within a democratic

non-Comuunist Left tradition and from a frame of reference heavily critical of orthodox

Marxistcategories. (Klare, op. cit., n. 67, p. 836.) The rejectionof'orthodox Marxism'is a

common featureof critical legal studies - it appearsthat a serious assessment of Marxism isnot.

72 Munger and Seron, op. cit., n. 62, p. 263.

73 Klare, op. cit., n. 5, p. 269, n. 13. However, Klare has since rejectedthe notion of'relative

autonomy' (op.cit., n. 67,

p. 752).Alan Hunt has identified it as a

key problemin critical

scholarship (op. cit., n. 1, pp. 28ff).74 Atleson, op. cit., n. 25;Klare, ManagementPrerogatives,PlantClosings and the N.L.R.A.:

A Response (1982) 11New YorkUniversityRev. Law and Social Changep. 113.

7 Id., p. 120.

76 Hunt, op. cit., p. 11.

77 Trubek, op. cit., n. 63, p. 613.

78 Klare, op. cit., n. 7, p. 73.

79 Stone, op. cit., n. 20, p. 1566.80 Trubek, op. cit., n. 63, p. 613.

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81 As Klare has done: op. cit., n. 10, p. 452, n. 6.82 H. Arthurs, Understanding Labour Law:The Debate over 'IndustrialPluralism' (1985)

CurrentLegal Problemsp. 83.

83 Klare, op. cit., n. 67, pp. 750ff.

84 Hunt, op. cit., p. 13.

85 Trubek, op. cit., n. 63, p. 591.

86 Atleson, op. cit., n. 19, p. 181, n. 4.

87 For example, P. E. Johnson, Do you Sincerely Want to be Radical? (1984) 36 StanfordLaw Rev.p. 247, pp. 281ff;L. B. Schwarz, WithGun and CameraThrough Darkest C.L.S.-

Land (1984) 36 StanfordLaw Rev. p. 413, pp. 426ff.

88 Sparer,op. cit., n. 8, pp. 512 and 552ff.89 Stone, op. cit., n. 20, p. 1580.

90 Lynd, op. cit., n. 22.91 Lynd, op. cit., n. 17.92 Stone, op. cit., n. 20, p. 1516.93

Id.94 Lynd, op. cit., n. 17.

95 Supra, n. 56.

96 Klare, op. cit., n. 7, p. 81.

97 Klare, op. cit., n. 10,p. 451, n. 4.

98 Schwarz, op. cit., n. 87, p. 426.

99 Johnson, op. cit., n. 87, p. 283.100 Klare, op. cit., n. 5, pp. 336-9.1o01 Supra,n.73.102 Supra,n.81.103 Supra,n. 100.

104 D. Trubek, Complexityand Contradiction in the LegalOrder:Balbusand the Challengeof

Critical Social Thought about Law (1977) 11 Law and Society Rev. p. 529, p. 545.

Ios Id., p. 544.

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