Preface

What happened to work and workers as the state-managed capitalism of the postwar era - the postwar settlement, as it is sometimes called - was replaced by neoliberal capitalism? What were the losses, the gains if any, and how, if at all, can the losses be recovered? Are growing inequality, widespread precarity, stepped-up market pressure on wages and employment conditions, the intensification of work, declining social protection and mounting tensions between work and family life inevitable or incurable, or can they, do they need to, be mitigated? In short: can remedies be found for the ailments of a neoliberal labour regime, and how exactly should they be conceived and applied?

If this book is centrally concerned with these questions, and with work and workers before, during and after the neoliberal era, it is categorically not another book about 'the future of work', as that topic has come to be defined (Srnicek and Williams 2015; Mason 2016; Benanav 2020). Nor is it an inventory of new kinds of jobs and forms of contracting for work, or a collection of recipes, a catalogue from which to pick 'solutions' to 'problems', such as how to set up an effective collective bargaining regime for a restaurant chain or the domestic care sector.1 Our concern, instead, lies with the more fundamental matter of building the capacities needed to devise and apply such solutions and the ends we would wish to pursue with them. In both respects, our focus is on labour law, on the role it could and would have to play in regulating, or re-regulating, the world of work after the neoliberal revolution. At the same time, however, our central message, and the guiding idea of the book, is that labour law, if it is to survive as a discipline related to but separate from private law, must be analysed and conceived in the context of political economy and the dynamic process of capitalist development: of economic constraints and opportunities, of politics and power, of government policy and political democracy. It is from this perspective that we attempt to reconstruct the mission and the substance, the function and the structure of labour law as a regulatory institution in a capitalist economy and society, existing recently but surely not forever in a neoliberal form.

By contextualizing labour law in this way, we are in essence treating it as an historical phenomenon, by which we mean more than simply that it changes over time. Putting labour law in an historical perspective means conceiving of it as embedded in the development and the changing forms of modern industrial capitalism. This reveals its specific normativity, its foundational mission to distinguish contracting for work from contracting for any other commodity, to devise a special contracting regime for that special, imperfect, fictitious commodity that is labour (Polanyi, 2001 [1944]). It is not so long ago that labour law as a matter of course used concepts such as industrial justice and industrial democracy; that it distinguished between fair and unfair contracts for work and sought remedies to balance what it considered an asymmetrical relationship of power between employers and workers. In this book we ask if these concepts and the ideas they house are still applicable today, even if in light of present conditions they can appear out of time. Indeed, our main concern in the book is with concepts, and not with statistics, values or prices, and with examples of new work and work relations rather than comprehensive theories of contemporary working life. Our aim is to understand law as an institution, as an instrument of social regulation, rather than to devise a theory of, say, new technology changing old or new work settings, or of the labour process in a post-industrial era.

Law is a highly complex, methodically and logically disciplined engagement of concepts - concepts that aim to capture both what the world is and what it ought to be, and to do so coherently, free of contradictions. Insofar as concepts meet that aim, they enable the legal system to adjudicate disputes on what is and what ought to be in such a way that those involved, and those looking on, can at least for the time being accept or approve what has been ruled as an objective condition of life as it continues. The part of the world where the conceptual abstractions of labour law meet reality used to be called industrial relations: the tripartite encounter of business, labour and government in organizing the intertwined processes in a capitalist society of production and capital accumulation, and provisionally settling the conflicts of interest that arise there, for the purpose of facilitating cooperation on terms acceptable to all three sides. Following the partial de-industrialization of our economies and disorganization of labour and business, the term 'industrial relations' may no longer be appropriate, but the confrontation of labour law's conceptual abstractions with reality remains a matter of great importance.

Under capitalism, labour law regulates society's paramount conflict line, its breaking zone, its most critical cleavage, where peaceful exchange and cooperation are forged, or fail to be forged, under conditions of distributional conflict among unequally powerful class interests. As a social and economic institution, labour law must serve two purposes at once: social integration through legally enforced conformity with collectively held values of social justice, giving rise to a legitimate social order providing for social peace, and capital accumulation, demanding a social order that must first be profitable before it can be just. Using the language of Karl Polanyi, this locates labour law at the crossroads of movement and countermovement as driving forces in capitalist development (Polanyi, 2001 [1944]). There, it is under pressure simultaneously to reflect, interfere with and provisionally settle the conflictual-cum-cooperative relationship, the main site of social reproduction in a capitalist society, between capital and labour - indeed, between capitalism and society.

As a field of law, labour law draws its legitimacy from its capacity to impose a stable and predictable order on a conflictual relationship of power and exploitation, to institutionalize such order as one of justice, of right, not only between individuals but also between classes. Due to the nature of contracting for work, which at the individual level typically proceeds between parties of unequal power, this has historically required labour law to differentiate itself from private law, turning itself into something like public and indeed democratic law: the law of 'industrial citizenship', designed to create, with institutional means, something like a level playing field between workers and employers. This was most pronounced in the postwar political economy, when the holders of state power felt unable to pacify the conflict between capital and labour by turning it over to either a 'free play of market forces' or the criminal law and the police. More so even than other fields of law, this made labour law more than just a superstructure reproducing an underlying power structure while dressing it up as a normative rather than merely a factual order. Because of the conflictual and tendentially explosive nature of the social field that it is to regulate, labour law is and must be open to contestation and change by those affected by it, responsive at least in part to pressures not just for internal dogmatic consistency or external economic efficiency but also for human interests and demands for non-commercial social justice. Potentially, that is to say, labour law must be capable of performing a progressive function under capitalism where capitalism is at its most capitalist, in the selling and buying of labour as a commodity.

This book, then, is the outcome of a meeting between two disciplines, labour law and political economy, and is intended to be productive for both. But what does it mean for one scholarly discipline to learn from another? Theories always come with hidden, unrecognized assumptions or with premises believed to be self-evident, not or no longer in need of examination. Theoretical progress can be made when for whatever reason such assumptions and premises are forced into the open, making them visible and debatable. Brought to the surface, they can be clarified, corrected, confirmed or thrown out; the theory can thereby be improved, narrowing or, to the contrary, widening its scope. An encounter with a related discipline and its conceptual reconstruction of the world can be helpful in this respect; for example, when the second theory treats as a variable what the first treats as a constant. It is true that 'interdisciplinarity' all too often serves as an excuse for, as it were, a lack of discipline. But this is not the case if the disciplines in question happen to complement each other, enabling them to detect and fill with substance gaps in the other's account. Then external conditions hitherto submerged in a ceteris paribus clause may be incorporated in the theory, or unproductive simplifications may have to give way to a more complex conceptualization of reality.

What is gained from placing labour law in the context of a theory of capitalist political economy? First, the fundamental distinction between labour law and contract law is thrown into stark relief - the inability of contract law to recognize or address the unequal power of the parties to a contract for work and the limited freedom of contract on the part of the weaker of the two (Weber, 1978...