Industrial relations labour law is there a disciplinary divide l.jpg
This presentation is the property of its rightful owner.
Sponsored Links
1 / 26

Industrial Relations & Labour Law: Is there a Disciplinary Divide? PowerPoint PPT Presentation


  • 60 Views
  • Uploaded on
  • Presentation posted in: General

Industrial Relations & Labour Law: Is there a Disciplinary Divide?. Andrew Frazer Faculty of Law University of Wollongong. Paradigms of Legal Scholarship. The traditional paradigm. doctrinal (black letter) Internal orientation

Download Presentation

Industrial Relations & Labour Law: Is there a Disciplinary Divide?

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript


Industrial relations labour law is there a disciplinary divide l.jpg

Industrial Relations & Labour Law: Is there a Disciplinary Divide?

Andrew FrazerFaculty of LawUniversity of Wollongong


Paradigms of legal scholarship l.jpg

Paradigms of Legal Scholarship


The traditional paradigm l.jpg

The traditional paradigm

  • doctrinal (black letter)

  • Internal orientation

    John Baldwin and Gwynn Davis:"The legal scholar who operates in the common law tradition is primarily interested not in the social policy of the law, or the translation of that policy into effective practice, but rather in the coherence and logic of legal argument applied to a given set of facts."


Traditional methodology l.jpg

Traditional methodology

  • ‘finding the law’

    Enid Campbell:"Legal research entails discovery of authoritative sources of laws in force at particular points of time, and interpretation of those sources.”


Doctrinal approach l.jpg

Doctrinal approach

Law as autonomous

  • Law is sufficiently described by its own sources

  • Distinctive (pure) legal topics

  • Distinctive method of legal reasoning

    Normative orientation

    Edward L Rubin: ‘prescriptive voice’

    Legal scholars ‘are not trying to describe the causes of observed phenomena, but to evaluate a series of events, to express values, and to prescribe alternatives.’


Internal v external approaches to law l.jpg

“Internal” v “External” approaches to law

External: Law in context

  • Operation and effects of legal rules

  • Social and political environment

  • Law not completely autonomous

  • Social science data relevant to operation of legal system

  • But legal scholars still focused on doctrine


Empirical research in law l.jpg

Empirical research in law

  • Increasing interest in operation and effects of law

  • But lack of empirical research skills

  • Most empirical research by scholars from other disciplines


Labour law in australia l.jpg

Labour Law in Australia


Labour law the traditional paradigm l.jpg

Labour law: the traditional paradigm

  • Formal focus :

    • employment contract & arbitration system

  • Interaction with Industrial Relations


Labour law works to 1985 bischoff et al l.jpg

Labour law works to 1985 (Bischoff et al)


Labour law publications 1956 85 mitchell l.jpg

Labour law publications 1956-85 (Mitchell)


Traditional paradigm areas of interest l.jpg

Traditional paradigm: areas of interest

  • Limits of the arbitration system

    • Constitution, legislation, Cmmn’s discretion

  • Practical issues in contract of employment

    • status, duties, dismissal

  • “Lawyers’ law”

    • Legal regulation of trade unions

    • Industrial action and the law

  • Jurisprudence of the tribunals

    • Development of norms


Industrial relations and law l.jpg

Industrial Relations and Law

  • A pluralist, state ‘decentred’ approach to regulation

  • Concerned with rules, formal and informal

  • But narrow view of law

    • As framework / environment for parties

    • As an input / tool

    • As a site for contest: courts, tribunals


Law as regulation l.jpg

Law as Regulation

  • Law and Labour Market Regulation

  • Meeting ground for labour law / IR

  • Broader scope - beyond empl relationship

  • Wider range of regulatory influences

    • Though still largely state-centred

    • Focused on formal legal processes


An alternative approach to law l.jpg

An Alternative Approach to Law

Sociology of Law /Socio-Legal Studies


The sociology of law l.jpg

The Sociology of Law

Eugen Ehrlich

Fundamental Principles of the Sociology of Law 1913 (trans 1937)

  • Law is not socially autonomous

  • Law is effective only as social norms

    “the enforceable contract does not rule the world to the extent that it is being enforced by the authorities, but to the extent that it has become a rule of conduct.”


Slide17 l.jpg

Ehrlich

  • Law is not the exclusive product of the state

    • Legal pluralism

    • Organisations develop their own “inner order of the association”

  • Legal institutions are social institutions

    • Courts decide by “norms for decision”

    • concretised into “technical legal propositions”

    • But these are never directly applied in practice


Modern sociology of law socio legal studies l.jpg

Modern Sociology of Law / Socio-Legal Studies

Cotterrell:

1. Law is irreducibly social

Law is “an aspect of social relationships in general”

2. Knowledge of law is empirically grounded

“based on observation of the diversity and detail” of “actual historical patterns (not abstract relations)

3. Study of law is systematic

from specific to general: “assess the significance of particularities in a wider perspective”


Postulates of socio legal studies l.jpg

Postulates of Socio-Legal Studies [?]

  • Law is part of society

    • Legal rules are social products

  • Law operates through social norms

    • No independent legitimation effect

  • Legally derived norms operate in specific contexts

    • “semi-autononomous social field” (Moore)

  • Legal institutions are sites of particular social relations

    • Courts etc influenced by economy & polity

  • Development of legal rules is a social practice carried out by a technocratic elite


Scope of sociology of law research l.jpg

Scope of sociology of law research

  • Effectiveness of law in controlling behaviour

    • law and social control

  • Influence of legal change on society

    • impact studies

  • Effectiveness of legal procedures - courts etc

    • legal process

  • Effect of social change on law

    • responsiveness

  • Law’s effect on social inequality


Sociological approaches to law l.jpg

Sociological approaches to law

(Banakar)


A sociology of labour law l.jpg

A sociology of labour law

Hugo Sinzheimer

Otto Kahn-Freund

  • Historical and comparative analysis

  • Descriptive account of norms regulating actual behaviour - empirical

  • Critical analysis of relationship between formal rules and social practices - gap

  • Theoretical synthesis - material foundations of legal ideology


Scope for development of law as regulation l.jpg

Scope for development of law as regulation

  • Social institutionalist approach

    • effect through social embeddedness

  • Pluralism

    • ‘deprivileging’ law

    • focus on social norms


Examples of sociological approach to labour law l.jpg

Examples of sociological approach to labour law

Australia at work project

(WRC, Sydney)

  • “the nature of the lived reality of employment contracts”

  • workers’ knowledge & perception of the legal instruments governing them


Slide25 l.jpg

Fidelity at the workplace

  • Implied duty under contract of employment

    • use of employer’s property

    • conflicts of interest

      • business opportunities

      • secret profits

  • Employer policies

  • Training

  • Workplace culture

  • Social norms - moral values


  • Login