A structural approach to labour law

Abstract

1. Introduction: the problem of philosophy, politics and purpose

The Covid-19 pandemic has starkly revealed the prevalence, and socio-economic significance, of deep, structural problems in the UK economy (Ewing and Hendy, 2020). Many of these problems are intimately related with the world of work: with workers’ terms and conditions of employment, with the organisation of production, and the structure and substance of the labour law framework in which they are embedded. It is little surprise, therefore, that the pandemic has stimulated much debate within labour law circles about apparently exploitative employment practices and the law’s failure to adequately respond to them—debates that have manifested, in many cases, in campaigns for new legislation; for improved enforcement, as well as systematic critiques of judicial approaches to adjudication (Adams, 2021).

In making these interventions in the legal and political debate, however, labour lawyers face a perennial problem; labour law is under attack. In a ‘neoliberal era’, labour law has, at best, been framed as a market correcting device, essential for promoting and facilitating free competition and, at worst, as an illegitimate and inefficient restriction on the operation of the market, and on the exercise of individual freedoms (Adams, 2020A). For the most part, the political will is simply lacking; therefore, when it comes to bringing about many of the changes for which labour lawyers are advocating. Of course, this opposition is not new, and labour lawyers have been trying to defend themselves from this attack for decades. The problem, however, is that they have not yet done so in a way that has been able to meaningfully challenge the underlying assumptions on which the neoliberal critique of labour law has been based.

Generally, while some labour lawyers have tended to rely on a combination of empirical, analytical and sociological techniques (Tucker, 2010; Dukes, 2014) to empirically refute some of neoliberalism’s underlying claims about labour law, many labour lawyers have instead resorted to a form of ‘philosophical contemplation’, drawing on ‘moral and political philosophy’ in order to establish a contrasting moral framework in which their arguments about labour law can be embedded. By turning to philosophical contemplation in this way, the aim is to help mobilise a new consensus around the necessity and desirability of labour law, uniting policy-makers, social actors and the courts around a shared sense of social justice (Collins et al., 2018, p. 13). This, then, might provide a counterweight to the neoliberal critique.

While the intention behind this philosophical approach is to be applauded, it is insufficient. Theories of morality or justice may do a good job when it comes to providing us with standards by which to assess the desirability of different social arrangements and/or outcomes, but they simply cannot supply us with criteria against which to assess the desirability of those standards themselves—to compare, in other words, competing theories, or conceptions of, social justice. As a result, philosophical contemplation is not really going to help labour lawyers meet the charges of the neoliberal critique: if there is no objectively ‘right’ vision of the good life, no objectively correct conception of what social justice entails, it can never be legitimate for the state to dictate how individuals should act, to regulate market activity considering ‘externally imposed’ values, as labour law purports to do. Rather, the only neutral and objective approach would be to ‘let the market decide’—to protect individual freedoms, promote competition, correcting for market failures, but without, ever attempting to regulate or limit the pursuit by individuals of their own self-interest, or to impose on individuals collective or social goals. Such an approach would only be useful, therefore, if we were able to defend or justify the particular theory chosen, and thus, the substantive claims made. But we cannot do this unless we have some understanding of why a particular moral theory is more persuasive—why, in other words, particular values, or principles, seem ‘appealing’ to us (and thus, to different groups) in different contexts. And by ignoring the social context in which popular or dominant theories of justice are formed, and the political and economic interests they serve, the ‘moral’ or ‘philosophical’ approach to labour law actually risks reinforcing rather than challenging existing structures—making that which is historical and contested appear natural and inevitable and not amenable to change (Knox, 2012).

It is in light of these limitations that this article develops a structural approach to labour law that attempts to enrich the normative arguments advanced by labour law scholars with the structural awareness and ontological depth which this author believes will be required if their arguments are to be successful. This paper aims to convince policy-makers and social actors of the importance and necessity of change, but also, to ensure their goals (and methods of goal achievement) are formulated with an awareness of their own structural basis. They must be sensitive to the nature of the society in which they are hoping to intervene, and the nature of the tool—labour law—which they intend to use.

The structural approach that this article advocates is inspired by some of the insights of the scholarly tradition of critical realism (Bhaskar, 1975, 1979). Critical realist social ontology develops a theory of social reality that allows us to appreciate the importance of engaging with the structural origins of the social problems we observe, but also, of our own conceptions and beliefs about them. Engaging with some of critical realism’s core premises, drawing on insights from the Marxist scholar Evgeny Pashukanis in the process, this article will show how a more structurally grounded approach to labour law might equip labour lawyers with the critical tools required if they are to meaningfully contribute to contemporary debates about labour law and work in general; using ways that engage reflexively and critically with the structural constraints under which they operate, and which, at the same time, influence the capacities and socio-economic-effects, of ‘law’ itself.

The rest of this article proceeds as follows:

Section 2 introduces critical realism and explores what it suggests about the necessity of a structural approach to labour law. Section 3 applies these insights to develop a structural understanding of the nature of capitalism, and the role in relation to those structures of law and labour law. Having exposed the role of labour law in reproducing and sustaining capitalistic relations of exploitation, section 4 teases out the practical implications of these arguments when it comes to developing normative arguments about labour law. Section 4 also examines how to develop short- and longer-term strategic projects that rely on law to further such projects.

2. Critical realism: the necessity of engaging with structures

The structural approach to labour law that is advocated throughout this article is inspired by the social ontology of critical realism (Bhaskar, 2014; Lawson, 2019). For the purposes of this article, one of the most significant tenets of critical realism is its observation that, because we only have access to the ‘surface’ of society (its forms of appearance), developing knowledge of reality (its underlying essence, or structure) requires thinking conceptually (through thought-experiments etc [Lawson, 1997, p. 212]), about the underlying structures that must exist for those experiences to be possible. This perspective mitigates in favour of a particular approach to social enquiry, a form of transcendental argument, that seeks to explain what the world must be like for a particular phenomenon (or a particular practice) to exist as it does; to reveal its conditions of possibility (Bhaskar, 1975, p. 36). By applying immanent critique to this process, scrutinising why and under what conditions we come to take certain facts about the world for granted—such as the idea that people should be treated equally; that employers should pay minimum wages, that x, y or z employment practice is exploitative, or indeed, that exploitation itself is problematic—critical realism encourages us to commit to an iterative process that involves the continuous refinement, and development, of existing theories and conceptions of the way the (social) world ‘is’, so as to better understand the nature and properties of the world in which we exist (Bhaskar, 1975, pp. 29–30).

Critical realist social ontology suggests that explanations of socio-economic outcomes, including the particular beliefs, and conceptions that are formed about those outcomes, must engage with the underlying structures in the context of which they come to be (Bhaskar, 1979, pp. 34–39; Archer, 1995). This is because, how individuals think, act and thus, the choices they make, is always already ‘conditioned’ by the ‘structural’ positions they find themselves in i.e ‘the web of relations into which they are born’ (Bhaskar, 1979, p. 52). This includes the shared discourses, languages and beliefs systems with which they must engage (whether consciously or not) if they are to interact with others, and participate in society or particular ‘spheres’ of interaction (Bhaskar, 1979, p. 35; Lawson, 2016). The positions people assume (capital/labour; worker/employer), and the discourses, ideas and beliefs that frame social practices condition (but do not determine), which opportunities agents seize and the capacities they exercise in a given situation; whereas discourses about the world condition the beliefs individuals actually hold and the reasons they form when acting, even if they do not determine them, because agents are always capable of (socially positioned) reflexive choice (Bhaskar, 1979, pp. 54–6; Archer, 2007, pp. 317–25; 2010). Given the origins of structures in social practices, moreover, we can expect particular sets of structures to emerge depending on the nature of the dominant mode of production (Bhaskar, 1979, p. 39, pp. 52–6, pp. 65–9, pp. 83–91; Brown, 2007). This is because the mode of production influences the nature of the practices which must be regularly produced if social life is to continue, and as such, the norms, beliefs and assumptions embedded in those practices, as well as the basic fabric of relationships through which those practices take place, and in which those norms, beliefs and values thereby come to be embedded (Adams, 2020A). This means that our analysis will always be specific, and must be tailored to, the particular nature, and structure, of capitalism.

When critical realists speak of structures in this way, they are speaking of the relationships that pertain between individuals and groups, of the implicit powers and capabilities that such individuals and groups possess depending on their position in that web of relationships, and on the systems of meaning, values and beliefs—about what is possible, necessary and legitimate—that arise from within those positions, as individuals engage in their ‘socially positioned’ practices (Bhaskar, 1979, pp. 12–32, p. 36, pp. 48–52; Lawson, 2016). In capitalism, as will be explained more fully below, these historically specific structures imply, or include, a specific type of institutionalised power, a form of ‘independent’ and neutral authority that acts, or expresses itself, through the medium and form of law (Pashukanis, 1987). Law, from this perspective, is not to be seen as just an abstract system of rules that can be used to achieve any particular social purpose. Rather, law should be seen as a specific form of social regulation and dispute resolution, an expression of the historically specific form that organised power assumes in the context of capitalism, inseparable from the social form of the independent State, and integrally related to and implicit in, the practices of commodity production and exchange through which the capitalist structure of social life is itself reproduced.

Speaking of law in this way is to recognise that social phenomena, including people, institutions, networks, etc, appear in different ways in the context of different practices and relations, and this appearance matters when it comes to what they do, what they can do, as well as how they come to be understood. (Bhaskar, 1979, pp. 174–7) Certain things—such as gold, for example—may appear in different forms, and function in different ways, as a result of the particular way in which they are ‘positioned’ and/or’ used’ in the context of particular practices, and as a result of the assumptions and beliefs that are immanent in those practices (Lawson, 2016; Jaeggi, 2018). The forms these things assume are a product, in part, of their physical properties (not everything could be positioned to function as a medium of exchange, for example, if it lacked the durability required for circulation) and, in part, of the way they are collectively conceived and understood within the particular community (or sphere of interaction) in whose practices they come to participate, as well as of wider technological, and/or environmental conditions. The nature of what we do is not, then, determined purely by the physical movements and actions we take, but also by the significance that is lent to those movements and actions as a result of the ideological or cognitive frames in which they participate, as conditioned or framed by the structures in which we exist (Lawson, 2016).

In the same way that social structures cannot be reduced to the actions of individual agents, then, because they pre-exist them and possess properties that agents do not possess whether collectively or in isolation (Archer, 1995, pp. 143–5); the discourses, theories, and belief systems that frame and lend significance to social practices are more than the words we actually say, or the beliefs that are actually held at a particular time. This is because they consist of implicit rules about what can be said and in what context, rules that are both a product of collective understandings shared between particular groups, and of a discourse’s internal structure, of what has been said in the past (Bhaskar, 2014, p. 46). Discourses, or systems of meaning (the ‘conceptual’ or ‘cognitive’) both frame and are reproduced/transformed through the actions of human beings. While the form that discourses and discursive/meaning systems take can be influenced by human agents, not only are the actions of those agents always already ‘socially conditioned’, or ‘framed’, but the form they take is also influenced by the objective features of the world from which they abstract, and which people engage with when they undertake any form of social activity, drawing on such discourses in the process.

These observations raise the possibility that law might influence behaviour not merely through the imposition of sanctions and the distribution of resources, but also cognitively, influencing agents’ conceptions of themselves and the world, and in this way too, influencing their behaviour (Adams, 2020A). Law might, then, shape our perception of the world, and even, how we believe we ought to change it (Gordon, 1984; Shaffer and Halliday, 2015, p. 11; Blackett, 2019, pp. 11–2). The normative arguments we develop in relation to labour law cannot then be seen as timeless and universal, independent from the social context in which they are developed. Rather, they are profoundly shaped by our own experiences, our own social practices, practices in which law is itself already inherent. Not only must we reflect on the social context in which our normative arguments are framed therefore, but also, on the practices and relations in the context of which we come to see law itself in a particular way—its potential, capacities and function. This is particularly significant given the potential that exists for our conceptions of structures to be distorted or imperfect (Bhaskar, 1979, pp. 174–9; Archer, 1995, pp. 143–5; Adams, 2020A).

A further important aspect of critical realist social theory is its emphasis on distinguishing between the basic characteristics of an object of analysis, and those characteristics which are external to it (Bhaskar, 1975, 1979; Keat and Urry, 1981; Sayer, 1984). Basic characteristics are those characteristics without which the object would not be the same—the characteristics which make capitalism, for example, what it is, and thus which are unique and distinctive to it. External characteristics, by contrast, are properties which are not necessary for the object’s existence, and so, are contingently, but not necessarily related with its identity or essence, properties which relate to the particular way in which that object has manifested empirically in particular contexts, and at particular times (Foord and Gregson, 1986, pp. 197–8). Drawing these distinctions is vitally important for it allows us to understand, for example, how the constitutive or essential structures of capitalism establish the conditions for certain features of capitalism to emerge or particular practices to take place. However, the question of whether, and if so, how they do emerge (and in what form) is ultimately a contingent outcome of the way in which people (and the wider conditions in which they exist, and the objects with which they interact) engage with, respond to and interact with those structures in particular contexts, and particular times. This perspective is especially important when it comes to identifying the structural constraints that exist within capitalism, when it comes to realising certain outcomes, and thus when it comes to advancing certain goals and the law’s capacity to facilitate and advance them. It is also important when it comes to understanding the scope for variation within capitalism that does exist, and thus, the potential that exists for change.

For the purposes of this article, these distinctions are also particularly important for helping us appreciate the necessary relationship that exists between law and capitalism, the tendencies this relationship creates vis-a-vis the law’s concrete development, and the forms assumed by that development, as well as the contingency that exists when it comes to how this development plays out in practice—the particular laws, and institutions that embody the empirical manifestation of law, at particular times, in various contexts. Applied to labour law, these observations allow us to see labour law as something that performs a particular function in capitalism, one that is a product of law’s structural relationship with capitalist social relations, but something the concrete development of which is profoundly influenced by a variety of conjunctural factors in the context of which a structurally mediated human agency plays, and can play, a material part—an observation that raises the possibility that we, as social actors, might be capable of influencing it, purposively, in various ways.

3. Law and capitalism

Capitalism is a society in which social relations are mediated by exchange. While, in all societies, decisions have to be made about how to allocate society’s limited resources, including its collective labour time in a way that ensures that social needs are met, only in capitalism are these allocative decisions made by, or mediated, a market. This market mediation would not be possible but for the systematic exclusion of one class from access to the non-market means of production and subsistence, something which is brought about, and sustained, by law (Marx, 1977, p. 855; Kusiak, 2019). This structural separation is a necessary and constitutive feature of capitalism, providing the conditions of possibility for a number of its defining features: it provides the conditions of possibility for the emergence of generalised exchange, and thus, the mediation of social relations by the market; it explains the resulting dependence of all on access to money to survive; it explains the necessity of one class (workers) to work for, and on behalf of, others in order to live; and it explains the possibility that those others be able to put those workers to work for longer than would be required to reproduce the value of the wage paid to them, extracting a surplus; and it explains the necessity for workers to spend their wages on purchasing subsistence goods and services in the market, establishing the gap between value advanced, and value realised, that provides the conditions of possibility for the production of surplus value, the accumulation of capital, and ultimately, the reproduction of capitalist social relations.

The structures that give rise to the market practices which provide the conditions of possibility for surplus value production, also however, generate tendencies that encourage social actors to act in ways that undermine those conditions (Palermo, 2017). While the structures that give rise to market practices, and the competitive process through which they proceed make possible surplus value production, this surplus value production is only possible if workers, collectively, and on average, receive at least as much money in return for the labour power they expend, as is required to reproduce that labour power over time (Huws, 2015, Chapter 7). But the structures that provide the conditions of possibility for surplus value production do not guarantee that this will be the case in practice, such that individual employers will necessarily pay their own workers a wage that covers their living costs, and that, collectively, employers will cover workers’ costs of living, so as to ensure labour powers sustainable reproduction. While, through the pressures of a competition, wages might in the long-run gravitate around the level required to reproduce the workforce—around the costs of living of the average worker—in the short term, and at a micro-level (at the level of specific industries and firms), there is no reason to think that an individual firm will pay its own workers the average or subsistence, wage, nor that it will pay each worker a wage sufficient to meet their particular needs. The pressures of competition simply compel workers, and firms, to do everything they can to secure their immediate economic survival and while this may often be conducive to capital accumulation, it is also often obstructive to that end (Marx, 1867, Chapter 10). While some workers may be in a position to refuse a wage that is insufficient to meet their needs, such as where they possess skills that are in high demand, and so have opportunities to access employment elsewhere, many workers will not. Many workers will have little choice but to accept whatever wage is offered, because they simply cannot afford the risk that a better offer might not exist. This is particularly so if there do not exist other sources of subsistence available to them in the particular society in question—unemployment insurance, public services etc. Similarly, while employers might recognise that paying workers ‘poverty’ wages might cause problems in the long-run, creating a hostile and potentially lazy and inefficient workforce, many employers may be under so much pressure to rapidly reduce costs merely to survive, that they cannot take these longer term risks into consideration. In such a situation, the possibility for surplus value production, and indeed, for the sustainable reproduction of capitalist social relations, might not be realised in practice. Instead, the action and decisions of employers and workers might produce a situation in which the productivity and supply of labour depreciates, and/or there is insufficient demand to realise the surplus value produced in practice.

This structural contradiction, the propensity for capitalism’s underlying structures to encourage practices and decisions that undermine the possibilities for surplus value production that those structure enable, but do not guarantee, creates a tendency towards the emergence of mechanisms that function to mediate that contradiction, a tendency that may or may not be realised, depending on how those contradictions manifest, and are subjectively experienced by social actors and the way in which they respond (Marx, 1867). Historically, the actions encouraged by the pressures of competition have proven so obstructive that competition (and the particular form in which it is established at given times), and the actions and decisions taken in response to it, have tended to generate struggles and conflicts to which the State has responded in the form of regulation. The regulation is partly to suppress the struggles and conflicts that creates pressures towards that intervention (Marx 1867, Chapter 10), and partly, by implication, re-establishing the political and economic stability on which its own legitimacy depends (Adams 2020A). Importantly, however, when the State intervenes in this way, it is responding, via the political process, to the surface-level manifestations of structural contradictions, as they manifest through the class struggle, rather than their underlying structural causes (Holdren, 2020).

These politically mediated responses to the particular way in which workers and firms respond to the contingent empirical manifestations of the structural contradictions underpinning capitalist social relations, and, in particular, those which manifest in the labour market and production, are what have come to be known to us as ‘labour law’ or ‘employment regulation’. Hence, labour ‘law’, in the form of positive regulations of the capitalist working relationship, can be seen as contingent responses to the structural contradictions that provide the conditions for the day-to-day struggles between capital and labour; regulations which discharge a function, presupposed by capitalism, of mediating those contradictions, sustaining capitalist social relations—however contingently and imperfectly they may come to do this in practice.

The various regulatory mechanisms that come to be known through the lens of labour law, do not, then, respond to capitalism’s structural contradictions directly, but only to the particular way in which the struggles and conflicts that emerge in response to the empirical effects of those contradictions manifest themselves, and are framed and conceived at particular times. As such, labour law mechanisms do not directly address themselves to those structures that make possible labour’s exploitation and which underpin the competitive market, but to the contingent effects of those structure, and to the varying societal responses to them. While we can say, then, that labour law is an historically evolved response to capitalism’s structural contradictions, one which comes to function as a way of limiting the extent of labour’s exploitation, and the particular ways in which that exploitation manifests, and is experienced in particular contexts, it only ever does so in a partial and distorted way—responding only to exploitation’s most immediate empirical effects (Holdren, 2020; Adams, 2020B).

It is one thing to say that the law tends to be invoked to suppress surface-level conflicts, rather than to change underlying structures, and quite another, however, to explain why the structures of capitalism, and the role of law within it, might actively prevent or impede attempts to use the law to target those structures more directly. That is, if social agents are always capable of (socially positioned) reflexive choice, what is to prevent us, as labour lawyers, from targeting our critical interventions in ways that better target the structural causes of the problems identified, rather than merely their observable effects?

In order to answer this question, we need to refer back to the observations above about the specificity of law, and its embedded-ness within capitalism’s constitutive practices and relations. Law, it has been argued, assumes a particular form as a result of its relationship with the practices and relations that are constitutive of capitalist society. In particular, the structural separation that provides the condition of possibility for capitalism’s core features, would not exist, and could not be reproduced, but for law and legal institutions. By protecting private property rights, and enforcing contracts, the law simultaneously reproduces the dependence that gives rise to the exchange of labour power for wages (the wage-work bargain), and, relatedly, provides the basis for the power that individual employers enjoy over their workers in production, whether or not that power is given expression, or support, in the contract agreed between the parties (Adams, 2020A). In order to be able to do this, law, as a means of social regulation, must assume a particular form (Pashukanis, 1987). To be consistent with the assumptions embedded in market practices, such as the equality and freedom of the individual, law must appear to market participants as something that exists externally to the market, something capable of upholding and protecting the rights and freedom of all, formally independent from the practices it regulates, while monopolising power outside the market. Only then can the image of the individual as equal to all others in their capacity for freedom—to act free from coercion—be sustained. While it is ultimately an historical question as to what precise form the institutional embodiment of such a legal system assumes in particular contexts, these core features of that system are fundamental to capitalism, the institutional basis of the values and assumptions intrinsic to market practices themselves.

The mechanisms of social regulation and dispute resolution that do emerge in particular historical contexts then, must be configured in such a way that they conceptualise individuals in abstraction from the structures from which they act: in the form in which they manifest, and must manifest, in the market. Rather than addressing itself to the relationships that are forged between fundamentally unequal social classes (those excluded from, and those in possession of money and means of production), the law then must regulate and adjudicate disputes between individuals through the lens of the inter-personal relations into which they enter, obscuring their structural contexts (Pashukanis, 1987).^. Whatever the precise configuration of a society’s legal system, therefore, the form of social regulation and dispute resolution it facilitates must be one that recasts social problems in ways that ultimately reinforce capitalist social relations, shaping how solutions to those problems are framed and any resulting legislative/judicial interventions.

From this perspective, law, and the institutions through which it finds expression, do not so much ‘ignore’ social problems, but present themselves as capable of addressing them, acknowledging (to some extent) the existence of poverty, inequality, exploitation, etc—while reframing them in a way that obscures their structural origins. At the same time, the web of concepts through which rules and decisions are articulated, shape the demands articulated within it—regardless of who makes those demands, and/or their overall objectives (Knox, 2009, p. 430). Even apparently ‘progressive’ or ‘critical’ interventions might then serve to reinforce capitalist social relations, notwithstanding the intentions and motivations behind them (Kusiack, 2019). Because political objectives must be translated into law to be given legal effect, even legislation tends to target social problems in a way that obscures or denies the existence of the structures which give rise to them (Adams, 2020b). This is so, moreover, regardless of how aware legal actors might be of the existence of those structures when arguing for legislative intervention when justifying their policy proposals in the first place (Knox, 2012). Insofar as they engage with, or on, legal terms, then, accepting the law’s framing of problems and events, legal actors often act as if those structures do not exist, limiting their capacity to address or change them—regardless of their subjective intentions, and this thereby distorts the policy objectives articulated within the law, and its socio-economic implications (Knox 2012, p. 220).

A good example of this can be seen from the way in which exploitation, is articulated, or distorted through legal discourse, even although exploitation is one of the core harms addressed by labour law, and one of the harms central to many ‘moral’ theories of labour law (Davidov and Langille, 2011; Collins et al., 2018; Mantouvalou, 2018). While exploitation, or the empirical facts constituting what we today describe as exploitation (conceived as the mode by which surplus labour is extracted from direct producers and appropriated by others (Resnick and Wolff, 1989) has been present in all societies, it is only in capitalism that it comes to be seen as problematic, and to be seen as problematic in a particular way: as violating a presumed natural equality, an ‘inherent’ dignity, that is deemed to be owing to all individuals, an equality and dignity which is perpetuated through, and immanent in, the exchange relations that mediate our every-day lives. Importantly, the particular form of exploitation that is distinctive to capitalism (Resnick and Wolff, 1989; Wolff, 2018) that arises as a result of the ‘gap’ between wages advanced and value realised, that capitalism’s class structures enable, is a form of exploitation in which the (historically specific) values of freedom and equality are already implicit. It is a form of exploitation which is already present and immanent in the ‘free market’ in which individuals engage with each other as ‘equals’, and through which this ‘gap’ itself emerges.

The legal form through which the wage-relation takes effect, the contract through which the employer’s power over workers finds concrete expression, and surplus labour (often, but not always in the form of surplus value (Barclay et al., 1975)) is extracted, actively obscures, and sustains, capitalism’s distinguishing mode of exploitation, such that it comes to be implicit in, and taken for granted, in our every-day practices (Pashukanis, 1987; Jaeggi, 2016). Thus, in the context of market practices, and the production relations that flow from them, we actually often only directly experience, and perceive exploitation where it goes beyond the levels permitted by, and implicit in the wage-relation itself, when it begins to challenge the particular form of freedom and equality that that relation embodies, and which is normatively projected through law. Such ‘over-’ exploitation might emerge in the form, for example, of an employer interfering in some way with the worker’s capacity to act freely, and thus, to return to work the next day ‘unharmed’; it might be because particular employers appear to be paying their workers a wage that is less than what they need to look after their basic needs; to be imposing working conditions that result in particularly egregious physical or economic harm; or to be engaging in acts that appear to violate workers” ’dignity’—such as the failure by certain digital platforms to secure their couriers access to toilet facilities during the Covid 19 pandemic, or the widely reported practice by amazon of restricting workers’ use of toilets in order to maximise work time (Bloodworth, 2018; Schofield, 2021).

In such situations, it would appear as a fundamental dereliction of duty were the State (the embodiment of general interest) not to intervene to protect the individual, to re-assert and re-enforce the freedom and dignity deemed to be owing, and integral to, all human beings. But so too would the existence and persistence of such practices, if unaddressed, begin to challenge the assumptions of freedom and equality immanent in, and integral, to the stability of exchange, revealing starkly the inequalities on which that exchange is based. It is perhaps no surprise, therefore, that such situations do tend to give rise to struggles and conflicts, and in many circumstances, impose sufficient pressure to bring about reform—however imperfect and/or however much of a compromise such reforms might be (Tucker, 2010). This is so, notwithstanding that the absence of such super-exploitation, the payment of decent wages and the maintenance of decent working conditions, situations that rarely generate the same sort and degree of conflict and unrest, still presupposes the basic form of class exploitation that is integral to capitalism as a socio-economic system, and so is still exploitative, and so, is still characterised by inequality and coercion (Jaeggi, 2008, 2016; Vrousalis, 2021).

Capitalism’s structures make possible the exploitation necessary for capital accumulation, therefore, but also, the super, or added exploitation that poses a threat to its long-run sustainability (Palermo, 2017). Whether or not these possibilities manifest empirically, and if so, how, depends on wider conditions, and on the particular ways in which social actors respond to the pressures and conditions facing them in specific contexts. In this sense, we can say that capitalism produces its own image of what an exploitation-free society looks like, and its doing so is inherently bound up with the fact that, for capitalism, an exploitation free society (in this distorted sense), is a condition of its sustainable reproduction. It is this particular image of an exploitation-free society that is embedded in labour law discourse, and historically, has formed the basis of the various ‘goals’ attributed to labour regulation (e.g. Davidov, 2016), as scholars and other legal actors, have responded to the empirical effects of ‘super-exploitation’ as revealed through and expressed in the class struggle. It is, moreover, this narrow form of over-exploitation that tends to be advanced in the theories of ‘justice’ which labour lawyers defend, and from which they tend to develop their normative arguments for reform (Davidov and Langille, 2011; Collins et al., 2018).

These observations help us to explain not only the existence of labour law, and its functions—those regulatory mechanisms that come to mediate capitalism’s contradictions (or rather, their immediate, surface-level effects)—but also why they tend to be seen or framed, as mechanisms capable and oriented towards ‘addressing’ or overcoming exploitation, as if a ‘regulated’ work relationship is an exploitation-free relationship and so is socially just. That is, as if labour law ‘removes’ the exploitative element that makes such relationships problematic. Because in reality, the law is only responding to the harms that arise from over-exploitation, the subjective perceptions of workers and employers of their own conflicting interests., In practice, the law is only ever addressing exploitation in the abstract, decontextualised sense, the way in which exploitation presents itself in every-day experiences, rather than in the deep structural sense, which those experiences tend to obscure. If labour lawyers are not sensitive to the limited view of exploitation immanent in labour law discourse when developing their arguments for reform, then they risk developing normative arguments that simply reinforce, and reproduce, the structural causes of the problems they hope to transcend, confining themselves to addressing their most objectionable, or socially harmful, empirical effects.

4. Practical implications

Law, then, can be seen as the expression, and mode of exercise, of the form of institutionalised power that is presupposed by capitalism’s constitutive practices, the only form in which power can be exercised in capitalism if it is to be seen as legitimate—where legitimacy is itself recognised to be conditioned by the assumptions and beliefs inherent in capitalism’s constitutive practices. This ‘legal form’, which power must assume in the context of social regulation (legislation) and dispute resolution (court cases), is one that presupposes a world in which individuals are as they appear, and see themselves, in the context of the market: as formally equal, and free. This image of the world is immanent in, and perpetuated through law and legal process, as well as the social practices they emerge to regulate (Knox, 2012). As a result, when individuals are conceptualised as the subject matter of social regulation, or the parties to a legal dispute, the law abstracts them from their social contexts, conceiving them in isolation from the structures in the context of which they act (Knox, 2019). In so doing, ‘law’ systematically obscures the structural coercion underpinning free exchange and tends to reframe social problems and social conflicts in ways that are consistent with this lack of structural coercion, facilitating the reproduction and legitimisation of that coercion in the process (Knox, 2012, 2019).

One result of this is that social problems and/or disputes become framed as the outcome of the actions and decisions of individuals, rather than as being profoundly conditioned by the structural contexts in which those decisions and actions are made (Adams, 2020B). This abstract and depoliticised world view does not simply ‘impose’ itself on workers and employers through legislation and legal argument; it is immanent in the social practices through which social problems and conflicts themselves emerge (Kinsey, 1978)—and it is only by framing those problems and disputes in a way that is consistent with this worldview, that individuals can call upon the law for ‘assistance’ or ‘protection’ or, in other words, invoke the law in defence of their interests (Knox, 2012). Even if legal and social actors subjectively recognise the distortions evident in the juridical world view, and so are subjectively aware of capitalism’s underlying structures, they have no choice but to act as if they are not aware (Marks, 2003; Knox, 2012), if they are to participate in, and potentially challenge, the dominant social practices of capitalist society effectively—that is through the legal form through which authority is inevitably exercised. The moment that workers call upon parliament to enact legislation, or upon the courts to enforce rights, then, the nature and structure of legal argument itself distorts the nature and causes of the problems and disputes brought before them, and, as a result, shapes the nature of any resulting outcomes or solutions.

These observations generate a particular problem for labour lawyers. Law cannot be avoided; not only do we constantly confront the law, for our actions will inevitably have legal consequences (and we have no choice but to engage with law on its terms if we are to effectively defend our and workers’ short-term or immediate interests; Knox, 2012, p. 223), but so too does law possess certain capacities in capitalism that makes it extremely important as a mechanism for advancing, and boosting the legitimacy of our normative projects: capacities of scale, enforcement and legitimacy etc (Knox, 2012, p. 214; Kusiak, 2021). Thus, not using law seems an unduly pessimistic, and perhaps self-defeating conclusion (Knox, 2012, p. 223). The problem, however, is that our engagement with the law, and thus, our attempts to ‘use’ it to advance our normative aspirations, is profoundly problematic: doing so not only risks those conflicts and projects being distorted and reframed in ways that are consistent with existing structures, but it also risks perpetuating and legitimising those structures in the process (Adams, 2020B). Not only do we tend to develop normative projects that are consistent with existing structures, therefore, insofar as we tend to internalise the assumptions and premises internal to the law, and immanent in the social contexts in which those projects are formed; but even when we engage expressly with the structural causes of the problems we confront, and thus, when we develop structurally informed goals and aspirations, the moment we begin to realise those goals and aspirations through law, they tend to be come depoliticised, abstracted and distorted (Knox, 2012).

In light of these observations, labour lawyers need to take a cautious and reflexive approach when it comes to thinking about law’s potential role in changing or improving the problems identified by social actors and commentators. In particular, it cautions us that using law, and legal argument, in the short term, to respond to immediate social problems, or resolve conjunctural social struggles and disputes is inherently risky. It is likely that in doing so, we will simply be reproducing and legitimising, the very structures that in the long term, will be necessary to change or transcend, to overcome their underlying causes (Knox, 2012; Holdren, 2020; Adams, 2020A). This does not mean abandoning the law entirely; it simply means that we must remain reflexively aware of these risks, and that we must explore, and pay attention to, the scope that exists for deploying law and legal argument, in a way that disrupts, unsettles, and re-politicises; in a way that not only makes structures visible, but also, the role in those structures, of law, and legal concepts.

These observations suggest a twofold strategy will be necessary if labour lawyers are to formulate and advance structurally or ontologically informed normative arguments in relation to labour law, and, in turn, if they are to competently challenge, and overcome, the neoliberal critique. The above analysis thus emphasises the importance of critically interrogating why certain theories of social justice appear ‘morally appealing’ to us in certain contexts, and thus why certain practices, or outcomes, appear so problematic. It forces us to take seriously the ontological basis of the ideologies driving labour market policies, rather than simply dismissing them and offering alternatives. The market only appears as a natural order, and individuals as naturally equal and free, in particular socio-historical conditions, and the role of law and legal discourse in upholding this ‘image’ must not be overlooked (Palermo, 2017). Nor, however, should it be uncritically accepted. Defending labour law policies in the name of the ‘universal’ values of human dignity, freedom and equality, without exploring why these values appear so important to us, and in what conditions, overlooks the role these values themselves play in the reproduction of the relations through which substantive inequalities are systematically reproduced. The task for the labour law scholar should not be to internalise the values that appear desirable or important to us, but to constantly question, and problemetise them; to explore and expose their structural basis, so as to open the door to a more reflexive, situated, normative critique.

In thinking about our shorter term goals, moreover, one of the implications of the structural approach is that it points our attention to the importance of exploring both the underlying structural logics shaping social development and the complexity and contingency of the ways in which those logics manifest in practice. While the structure of capitalism profoundly conditions the sort of social development that can occur, and thus, the sorts of socio-economic outcomes that can be achieved, it does not determine them. Thus, the particular way in which capitalism manifests today, and indeed the legal framework in which its constitutive practices are embedded, was not pre-given. Rather, it was the result of the particular way in which those logics were subjectively interpreted by social actors, and the way in which they responded to those logics in particular conditions, and the longer-term implications of this for how social practices proceeded into the future (Archer, 1995, p. 146); hence the traditional emphasis on the class struggle in shaping capitalism’s, but also law’s, concrete development (Hepple, 2011; Dukes, 2014;,Arthurs, 2018). This observation forces us to recognise the contingency of the present, and thus, the potential that exists for a variety of futures to be brought about, depending on how we react today to the structural contexts in which we find ourselves, and the conjunctural conditions which we face. These may be futures within capitalism, changes within capitalism’s necessary structures, but, potentially, futures within such structures that embrace the potential for one day transcending them.

What the analysis of law’s relationship with capitalism emphasises, however, is that labour law cannot be seen as a mechanism with the capacity to change underlying or basic structures. To do so, would be to undermine the structural basis of law, and labour law itself (Lukáks, 1971, p. 264). It can, however, still be seen as a mechanism with the capacity to legitimise and/or destabilise those structures—including law—to foster and facilitate the capacities and capabilities that will be required to overcome those structures, depending on how it is used, and for what purposes. Minimum wage regulations, working time regulations, health and safety protections etc, may not challenge the basic structure of capitalism, therefore, and may indeed undermine attempts to challenge it in the immediate future (by stabilising existing practices), but they will be absolutely vital when it comes to developing the sort of social movements that will be required to transcend those basic structures in practice. Not only this, but, in the same way that the structures of capitalism can manifest concretely in a variety of empirical forms, so too can core labour law protections, functionally necessary for capitalism, be designed, structured and conceived, in a myriad of ways as well—with very different empirical effects Thus, a minimum wage that is payable for work, and which is set at a level that the market can ‘bear’ (a ‘market-clearing’ rate) will indeed simply reinforce the premise that competitive markets can realise just outcomes, and actively promote an image of society in which free competition is an expression of freedom and equality, rather than the process by which it is systematically negated. The law’s enforcement of such measures can even create an impression that, provided such wages are paid, ‘exploitation’ does not exist, exacerbating the inequality of power that exists between capital and labour, by obscuring its structural origins. This is, indeed, the impression one gets from campaigns to provide workers in the gig-economy with minimum wages—that payment of a minimum wage as presently structured will be sufficient to remedy the underlying ‘exploitation’ which such mechanisms target.

In contrast with this, however, a minimum wage conceived in such a way as to ensure a guaranteed weekly income for all labour market participants, irrespective of how much work they are able to access, set at a level that not only reflects average living costs, rather than ‘market value’, but an explicitly political decision about what sort of standard of living workers are deemed to be entitled, can actually go some way towards shaping capitalism’s development, while, simultaneously, problematising the naturalistic image of the market, and the ‘wage’, that the former construction of the minimum wage perpetuates (Adams, 2019; Adams, 2020A). Of course, this form of minimum wage is still limited—it does not address the underlying causes of low pay, because it does not abolish the structures that give rise to the necessity to work for wages—but it does a better job of not only mediating capitalism’s contradictions, but also, of doing so in a way that reveals the limits of law, and which helps to expose and problematise, the legal and political foundations of markets at the same time.

In addition to revealing the scope that exists for shaping the precise form in which capitalism manifests, and indeed, the precise nature of specific labour law institutions, the distinction drawn throughout this article between the basic features of capitalism’s necessary structures, and the precise form in which they manifest in different historical contexts, is also something which we can harness, to think critically about the different ways in which the labour market can be instituted, and legally constructed in practice. Thus, while a labour market may be integral to capitalism, the precise institutional framework in which labour markets are embedded is not pre-determined. The precise dynamics of competition, and thus, the degree, if not the existence, of the inequality of power between capital and labour, can be profoundly influenced through the introduction (or not) of various institutions: institutional support for collective bargaining; generous social security rights; comprehensive public-service provision etc. While still supporting the existence and perpetuation of labour market practices, and the underlying structures which give rise to them, such mechanisms can make a real difference to the way in which the tendencies embedded in those structures actually play out, influencing the options available to workers and employers, and the scope and extent, of their capacities for various forms of action. In this way, such measures might not only improve the conditions of life and work within capitalism, but might also help provide the conditions for the sort of political mobilisations and strategies that may one day help us challenge capitalistic structures more directly.

These observations notwithstanding, however, one of the core insights of this article is the importance of taking into account the fact that the success of all such strategies is fundamentally constrained by law’s structural relationship with capitalist social relations. All these proposals engage critically with the structural causes of the problems identified, and attempt to embrace the scope that exists within those structures for change; but gaining political support for such proposals, and translating them into concrete outcomes, will still be constrained by the limits inherent in the nature of law as a social existent. More specifically, all these measures conflict, or can be seen to conflict, with the values and assumptions inherent in labour market practices, and which are perpetuated through law and legal discourse itself, making political opposition to them more likely. So too do they risk being distorted when they are translated into legal language, and thus, may come to be interpreted consistently with the worldview immanent in the law’s social imaginary, distorting their initial ‘design’. This is why the above observations are so important; our task as labour lawyers is not merely to critique society, nor to propose even structurally, or ontologically, informed arguments for reform. Rather, we need to think about what our understanding of capitalism and law implies when it comes to how we do this in practice, about how we might expose the structural limits to the changes for which we ourselves advocate, and the particular way in which these limits are perpetuated through, and manifest in, law. And in doing so, we must self-critically accept the ambiguous, and conflictual nature of our own normative projects, explaining their potential while nonetheless, simultaneously, exposing their limitations.

Acknowledgements

I would like to thank Lars Vinx for comments on previous versions of this article.

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