B. The Development of the socio-legal Study of Labor Law

There is an established tradition of socio-legal labor law scholarship which emerged first in Germany, and later in the UK. In Germany, Hugo Sinzheimer (1875–1945) played a major role in developing a theory of German labor law during the Weimar Republic. Sinzheimer considered labor law as a tool to be manipulated to correct the injustices inherent in the capitalist mode of production.^{Footnote 10} He supported Rudolf Stammler’s theory according to which “law” represents the “moulding force” of social life: “Society does not exist in a preconstituted form,” but “is ‘guaranteed’ by law.”^{Footnote 11} For Sinzheimer, this meant that the “law”—as contained in legislation and court judgments—was not just a system of norms, but also had to correspond to the social needs for which it was developed. Thus, law had to be understood within the context of “legal reality,” or, the norms which govern social action. Any analysis of labor law had to adopt a socio-legal method.^{Footnote 12}

Sinzheimer’s advocacy for the socio-legal method in labor law fed into the Methodenstreit of the 1930s, which pitched the socio-legal method against the “law as science” approach— the latter supported by a number of leading German labor law scholars, including Hans Carl Nipperdey and Walter Kaskel.^{Footnote 13} The “law as science” approach stressed objectivity in legal analysis—rejecting any “politicolegal” treatment of labor law, which it considered a “step backwards to a kind of sociological feuilleton”^{Footnote 14}—and instead adopted a legal dogmatic lens.^{Footnote 15} It systematically divided labor law “into several components (together with industrial insurance, labor contracts, labor protection, labor constitution (Arbeitsverfassung), the public authorities with regard to work and trade disputes, as well as the ‘search’ for work (Arbeitsbeschaffung) and help for the unemployed).”^{Footnote 16} Labor law was studied and taught in an aprioristic manner. Sinzheimer broke with this systematization, by interpreting labor law in a way that clarified “the processes going towards its making, starting with the structures and functioning of rival social forces.”^{Footnote 17}

As a prominent Jewish scholar, Sinzheimer was forced to leave Germany for the Netherlands in 1933 and died in exile in 1945. Following World War II, Sinzheimer’s approach was not initially resurrected. Labor law lacked the foundational, legalpolitical debate on its role and purpose which had defined the Weimar Republic. It was characterized by a “withdrawal to general clauses” and a reliance on “judgemade laws.”^{Footnote 18} Labor laws and the accompanying jurisprudence were based on the principles of social and mutual cooperation which tempered collective articulation and action.^{Footnote 19} As Ramm explains, “[a]fter 1945 labor law was deprived of its left wing politics and Jewish scholars; it was a labor law in which the force of the workers’ movement was lacking, as was the social issue.”^{Footnote 20} A change in approach only occurred in the 1970s when a group of younger scholars reignited the Methodenstreit of the interwar years by calling for labor law to consider the law as it exists in society.^{Footnote 21} This group of scholars—the “labour law left” (die arbeitsrechtliche Linke), a minority in labor law scholarship—presented their arguments as a rigorous rebuttal of the majority’s legal dogmatic arguments. They adopted a broad definition of labor law as including the law as contained in legislation and judicial decisions as well as its impact on the work relationship. The arbeitsrechtliche Linke advocated a more politicized approach to labor law, analyzing the law through recourse to socio-legal methods.^{Footnote 22} In doing so, they revived a foundational, and still ongoing, debate on the role and purpose of labor law scholarship. Coupled with changes in the labor market that have led to a decline in the standard employment relationship, there has been a recognition in Germany that labor law scholarship must respond “to problems of daily life and away from abstract theory or, as it is called, Dogmatik,”^{Footnote 23} thereby opening up potential avenues for future socio-legal research projects.

Although his influence has been limited in his home country, Sinzheimer’s socio-legal approach had an effect beyond Germany. Otto KahnFreund (1900–1979), the “founding father” of British labor law and onetime student of Sinzheimer, had internalized his teacher’s thinking.^{Footnote 24} KahnFreund’s main contribution to the creation and development of British labor law was his articulation of the doctrine of collective laissez-faire, which states that the central function of British labor law is to enable, facilitate, and support the regulation of the employment relationship through voluntary collective bargaining between employers and trade unions. As Davies and Freedland explain:

This sociological approach to thinking about labor law à la Sinzheimer embraced both “the law” and the “actual state of affairs.”^{Footnote 26} In order to determine “the actual state of affairs,” KahnFreund collaborated with a number of industrial relations scholars, particularly the “Oxford School” led by Allan Flanders and Hugh Clegg—scholars who had an interest in and understanding of the history of industrial relations.^{Footnote 27} The resulting multidisciplinary labor law scholarship sought to analyze and explain legal rules within their social context. Although this particular type of British labor law scholarship had its heyday in the 1960s, it produced an extended generation of labor law scholars who followed in KahnFreund’s footsteps.^{Footnote 28} Many of these scholars drew on the writings of labor historians and industrial relations scholars in order to explain and develop labor law. Their work placed “labor law at the cutting edge of British socio-legal scholarship.”^{Footnote 29}

Subsequent shifts in government policy have meant that collective laissez-faire as a key feature of British labor law has all but disappeared, and as such, new rationales for, and ways of thinking about, labor law have emerged. Yet British labor law scholarship stands out for retaining an open, multidisciplinary approach. There has not been the development of a single dogmatic framework which guides analyses.^{Footnote 30} Contemporary researchers have turned to philosophy and political theory, economics, sociology, and political economy approaches in order to explain and advance the discipline at a time when the labor market has fundamentally changed.^{Footnote 31} This Article proposes to use history as an entrée into developing different ways of understanding the origins and future trajectory labor law and labor relations systems. As a prerequisite for this approach, the next section reviews the labor law history scholarship in Germany and the UK.

C. A History of Labor Law History in Germany and the UK

D. Comparative Labor Law: Introducing a “Minor Comparativism” of Labor Law History

Labor law is no stranger to comparative law. A large body of theoretical literature has developed on the proper application of the comparative method to labor law as well as an everincreasing amount of literature comparing aspects of different legal systems.^{Footnote 64} As KahnFreund pointed out, the objective of comparative labor law should be to discover whether an institution, practice, doctrine, or tradition is inevitable or universal, or whether it is the outcome of specific social, historical, or geographical conditions.^{Footnote 65} A large portion of comparative writings seem to fall short of this objective by remaining superficial in the depth of comparison achieved. Their aim is to compare legal differences and similarities across jurisdictions. However, some works manage to conduct more thorough comparisons which convey a sense of how specific laws play out in a given society and provide an insight into how the law may be improved within that social setting.^{Footnote 66}

The main contribution to such “profound”^{Footnote 67} comparative labor law stems from Otto KahnFreund. His dual legal background equipped him with the requisite sociohistorical understanding of more than one legal system in order to carry out effective, indepth comparisons. For KahnFreund, comparative labor law should not be seen as a separate field of research but as a tool of analysis. As KahnFreund pointed out:

This approach was applied in the 1970s by a group of leading scholars, under Bob Hepple’s editorship, who attempted to explain labor law’s pluralism by undertaking a comparative historical research project, published as The Making of Labor Law in Europe: A Comparative Study of Nine Countries up to 1945 in 1986.^{Footnote 69} The project explained the historical development of labor law as resulting from “a process of struggle between different social groups … and of competing ideologies conservatives, liberals and socialists, and of religious and secular groups.”^{Footnote 70} Labor law “is made by men and women in a society not of their own making.”^{Footnote 71} Its shape is dependent on the outcome of power struggles—what different social groups could “force or persuade other groups to let them have.”^{Footnote 72}

Hepple sought to explain the comparative development of labor laws at two levels: (1) The direct historical relationship of legal transplants from one country to another, and (2) the “inner” social, economic and political relationship of parallel developments in different countries. The first level is relatively straightforward: “[M]any rules of national systems of labor law are either derived from or have been strongly influenced by other systems.”^{Footnote 73} The comparative law literature has long debated the viability and shape of legal transplants.^{Footnote 74} Two main theoretical strands have emerged. For Watson, “a rule transplanted from one country to another … may equally operate to different effect in the two societies, even though it is expressed in apparently similar terms in the two countries.”^{Footnote 75} This implies that the transplantation of legal rules without adjustment of those rules is possible. Yet the success of rules borrowed from one legal system and directly imported to another system is rare. The second strand of thinking on the transplantability of legal rules stems from Otto KahnFreund. For KahnFreund, the degree to which a rule can be transplanted depends on the extent to which it conforms with the foreign political and legal structure.^{Footnote 76} Thus, “we cannot take for granted that rules or institutions are transplantable …; any attempt to use a pattern of law outside the environment of its origin [entails] the wish of rejection,” unless legislators have adequate “knowledge not only of the foreign law, but also of its social, and above all its political, context.”^{Footnote 77}

On the “inner relationship” between systems, Hepple argued that the development of labor law “is the product of a variety of historical factors, which are neither ‘necessary’ nor ‘natural’ …. The choices made were not inevitable solutions to the social problems created by the workings of the market.”^{Footnote 78} The challenge for comparative labor lawyers is to explain the specific features of historical change. In Hepple’s book, the individual chapters do this by looking at how particular legislative measures were introduced in each country through the lens of “power.” For Hepple, “[m]any of the demands made by labour movements and social reformers were unsuccessful because they were unacceptable to those with greater economic and political power …. [T]he powerfulness of the opponents of reform was the decisive factor in the making of labor law.”^{Footnote 79} Adopting the lens of power in this sense allowed the contributors to portray the common tendencies and divergences of different labor law systems in nine European countries.

The question of whether and how to draw on other disciplines in order to undertake a comparison also permeates comparative law. Recent scholarship has sought to move away from what Pierre Legrand described as “positivist” comparative law, towards the contextualized analysis of legal rules, their active interpretation, and engagement with interdisciplinary study.^{Footnote 80} As part of this trend, scholars have adopted different methodological lenses in order to give a voice to individuals and social groups whose views are not part of mainstream narratives.^{Footnote 81} Their approach decenters the state and positive law as the focus of a comparison and recognizes the legitimacy of multiple traditions and social orderings.^{Footnote 82} In an article published in 2015, Sherally Munshi borrowed from comparative literature to propose the idea of a minor comparativism, which engages “the essential instability, incoherence, alterity, and heterogeneity that define the state.”^{Footnote 83} A minor comparativism retains the general tenor of comparative law, which is “to reveal something about our immediate world that would not reveal itself but through the practice of adopting a foreign perspective”, but it seeks that foreign perspective “within” one’s own country.^{Footnote 84} It “sets the official image of a particular state against the reflections of its minority subjects.”^{Footnote 85} A minor comparativism acknowledges that the minority—to be understood in the sense of foreign or not belonging to the majority—is not peripheral but central to the formation of laws, the state, and the nation. A minority constructs its thinking not within a national culture but apart from it—without absorbing a nation’s consciousness, morality, or worldview.Footnote ⁸⁶ Adopting such a minority perspective decenters the state, thereby engaging “the essential instability, incoherence, alterity, and heterogeneity that define the state.”Footnote ⁸⁷ It recognizes that the state incorporates diverse peoples and views, and “severs the imagined unity between the state and its subjects.”Footnote ⁸⁸ A consequence of this is that a minor comparativism resists regurgitating authorized representations of the law. While traditional approaches to comparative law tend to identify and isolate particular rules or institutions across legal systems, a minor comparativism focuses on discovering how the law is encountered, shaped, and perceived by the minority. It seeks to complicate received understandings of the law and its development. For labor lawyers, the use of such an approach opens up traditional narratives to reinterpretation at a time when the discipline is in flux. As Munshi explains:

The question arises as to who is meant by “the minority” for labor law scholars. Two possibilities arise. First, Hepple, in his comparative labor law study, recognized that labor law’s shape is dependent on the outcome of power struggles. The views of the individuals or groups who lost out in the power struggles—social reformers and labor movements who were unsuccessful—have been erased from the legal record and, by extension, are the subject of study of legal or labor historians, but are often neglected by comparative law and labor law scholars. Yet, their demands held sway at particular moments in history even if they were not in the end translated into law—the outcome of power struggles were neither inevitable nor predetermined. Second, there are the views of minority groups within states who observe majority culture but are not part of it. These minority groups are more frequently studied by historians than by lawyers, yet their perspectives offer valuable insights on the functioning of law in society.

A minor comparativism allows labor law scholars to rediscover both of these viewpoints, thereby disrupting and complicating received understandings of labor law’s historical development. Such an exercise requires scholars to engage seriously with the discourse of foreign minorities and to set it against the traditional narrative. This, in turn, enables scholars to identify, question, and challenge conventional assumptions about the legal system by rendering those conventional assumptions foreign to themselves. Such an approach has not hitherto been applied to labor law. It allows scholars to consider the possibilities of what could have been, to think about law in a different framework from the norm, and to develop alternative approaches to legal regulation. In a final section, I begin to develop a minor comparativism of labor law history within a socio-legal framework with a view to revealing alternative ways of thinking about worker participation in workplace decisionmaking in the UK and Germany.

E. Developing a Minor Comparativism of Labor Law History: “Foreign” Views on Worker Participation in Workplace Decision Making

Labor law’s essential form reflects the problems occasioned by industrialization, including the separation of production from consumption and of workers from ownership and control of the means of production.^{Footnote 90} For much of the twentieth century, worker representation within the workplace in the UK had been assured primarily through agreement between employers and trade unions outside a formal legislative footing.^{Footnote 91} The dominant view in British labor law justifying the lack of workers’ formal involvement in the control of industry has been intertwined with collective laissez-faire in that worker representation on management boards was “unacceptable” as it threatened tradeunion independence.^{Footnote 92} For most of the twentieth century, worker participation on company boards was also anathema to corporate law’s model of shareholder ownership and primacy. Since the 1990s, corporate law scholars have shown resurgent interest in protecting “stakeholder rights”—broadly defined to include workers, consumers and other interest groups—through corporate governance reforms, including providing for worker and other stakeholder representation on company boards.^{Footnote 93} In contrast, there has been comparatively limited engagement by labor law scholars with labor law’s role in providing for worker participation in workplace decisionmaking. Much of the British labor law literature which discusses worker representation focuses on the Report of the Committee of Inquiry on Industrial Democracy (1977) Cmnd 6706 (the “Bullock Report”). For those arguing in favor of worker participation, the German model of parity codetermination (paritätische Mitbestimmung), which provides for equal worker and management representation on certain company supervisory boards, is cited as exemplary,^{Footnote 94} without probing the principles and historical contingencies underpinning the system.^{Footnote 95} British labor law is lacking a debate about what workplace participation is for and what it should look like.

A minor comparativism within a socio-legal framework can ignite such a debate by revealing alternative ways of thinking about worker participation. The approach combines archival research with an analysis of German and British literature drawn from labor and corporate law, history, and industrial relations in order to reconstruct and reassess historical debates on worker participation through a minority lens. This enables an analysis of worker participation within a different framework from the status quo, opening it up to other possibilities. It moves away from mainstream explanations of the law’s development and, instead, focuses on the law’s perception at its time of coming into being by the minority—as evidenced by archival sources. A minor comparativism in this case sets the mainstream narrative that worker participation is “unacceptable” against the debates that were taking place in the UK on worker participation during and immediately after the period of the Second World War, up to 1950. Two minority perspectives are of interest. First, that of a group of exiled German trade unionists based in the UK during World War II who combined to form the Trade Union Centre for German Trade Unionists in the UK (Landesgruppe deutscher Gewerkschafter in Grossbritannien). A close reading of the German literature^{Footnote 96} suggests that the postwar German model of codetermination, initially introduced by the British military government in the iron and steel industries in 1947, is based on plans designed by the Landesgruppe.^{Footnote 97} The Landesgruppe’s chairman, Hans Gottfurcht^{Footnote 98}—a German Jewish trade unionist who fled to the UK in 1938—set up a number of working groups during the war to develop plans for postwar German reconstruction. The Landesgruppe was the only German emigrant body that brought together and represented all leftwing exile groups.^{Footnote 99} One of these groups, the Internationaler Sozialistischer Kampfbund (ISK), had a substantial, albeit hitherto unexplored, influence on Landesgruppe policies—and had close links with British intellectuals, including the industrial relations scholar Allan Flanders, throughout the 1920s, 1930s, and 1940s.^{Footnote 100} Letters exchanged between Landesgruppe members and British trade unionists, including Walter Citrine, the Secretary General of the Trades Union Congress (TUC), and Ernest Bevin, the Minister for Labor (1940–1945) and Foreign Secretary (1945–1951), before, during, and after the war, are indicative of close personal relationships. Many German postwar trade union leaders were exiled in the UK during the war and had been members of the Landesgruppe. As such, the Landesgruppe is an example of a minority within, but apart from, and not of, the British labor law tradition. An exploration of their deliberations on worker participation also raises the question of whether there was any crossfertilization of ideas between the British and exiled German trade union movements which have hitherto escaped scholars’ attention.

The second minority perspective is that of a number of British trade unionists who advocated worker participation in workplace decisionmaking throughout the 1940s. The subject of worker representation on boards had arisen repeatedly at TUC Annual Congresses throughout the 1920s, 1930s, and early 1940s in the context of debates on the future nationalization of British industry. Nationalization of, inter alia, the coal, iron, and steel industries formed a major part of the election manifesto of the Labor government which came to power in July 1945. The general question that was raised for British trade unions by the nationalization program was whether unions would, or should, be prepared to take a wider role in the management of these nationalized industries. However, in practice it became clear that the TUC generally was prepared to take only the most cautious steps in this direction despite a number of affiliates advocating a different, and after 1945, increasingly vocal stance which has largely been forgotten.^{Footnote 101}

Viewing the dominant narrative on worker participation through these minority eyes provides new perspectives on the subject. It is liberating in the sense that it transforms the way in which worker participation can be understood within the UK labor law framework and provides different starting points to develop a contemporary model for worker participation—grounded in labor law, and appropriate for a postindustrial landscape.

The minor comparativism proposed here takes place within a socio-legal framework. It does not seek primarily to document the origins of particular laws or legal concepts, but instead seeks to rediscover the views of two minority groups who were advocating in favor of worker participation in workplace decisionmaking at a critical time in British labor law history, but whose views have escaped the legal record. The comparativism relies on a wide range of German and British primary and secondary sources drawn from labor law, history, and industrial relations in order to reconstruct the Landesgruppe’s deliberations on worker participation and their interactions with British trade unionists on the subject. Archival sources, which are held in archives in Germany and the UK,^{Footnote 102} include documents from the British military government, correspondence between British and exiled German trade unionists, diaries of exiled trade unionists, and minutes of Landesgruppe meetings. Archival sources have been underused in British labor law history, although they form the backbone of legal historical research. As Boorstin points out, “history is the data of law.”^{Footnote 103} It allows the legal scholar to discover the “minds, intentions, problems, and limitations of those who created [it] or for whom [it was] created.”^{Footnote 104} By using archival sources, scholars can revisit classic accounts of the development of the theories and processes underpinning the labor law system.^{Footnote 105} For lawyers, the opening up of their discipline to the findings of historians and to new methods of comparative law allows a more empirically refined and a theoretically sounder understanding of the socio-legal history and nature of labor law.