The Statutory Minimum Wage

This chapter explores the modern minimum wage framework in detail. The first section begins by exploring the background to the National Minimum Wage Act through the lens of the relationship between minimum wages and wage supplementation. The second section then explores the conceptual structure of the Act in more detail. In particular, it explores how an individual’s minimum wage entitlement is assessed; the types of ‘work’ that are either implicitly or expressly, excluded from the Act; and the content of the concept of the ‘wage’. It concludes with some remarks about what the Act’s structure implies about the legal system’s understanding of the role of minimum ‘wage’ regulation today.

Legal Form

The chapter builds on the analysis in Chapter 1 with a view to exploring the nature of law and its relationship with capitalist society in more detail. The previous chapter used an analysis of capitalism’s deep structures to explore the nature of law’s role(s) in capitalism, engaging with the various legal ‘functions’ that capitalism presupposes. The purpose of this chapter is to explore the implications of this understanding of law’s role (or function) when it comes to understanding law’s form. The first section begins by developing a theory of the legal form by engaging with the work of Evgeny Pashukanis. The second section teases out the implications of this analysis for our understanding of the relationship between the legal form and capitalism’s contradictions. The third section draws on this analysis to shed light on the relationship between legal form and content. The fourth section makes some tentative conclusions about the implications of this analysis for our understanding of labour law.

Labour Law from an Ontological Perspective

This introductory chapter explains the motivation behind the book. It argues that it is unhelpful to talk about what labour law should be doing, and how, without a deeper understanding both of what law is, its ontology, and the nature of the society to which it is specific. The chapter introduces key themes and ideas, and outlines, briefly, the chapters to follow. It introduces the reader to social ontology, and the particular approach to social ontology inspiring the book. It contrasts two competing conceptions of the law–market and law–society relationship, and explains how these conceptions influence assumptions about the nature, and function, of labour law, and of the concept of the wage.

Mutuality of Obligation and the Social Wage

This chapter draws on the analysis in the previous chapters to illustrate how the courts’ conception of the relationship between law and social practices influences approaches to employment status and, relatedly, the effectiveness of labour law when it comes to securing or coordinating the provision of a ‘social wage’. It does this through the lens of the concept of ‘mutuality of obligation’. The first section explores the concept of ‘mutuality of obligation’ as it is conceived today. The second section then traces the development of this concept over time. The third section concludes with some observations about how the conception of law’s ontology we find implicit in the case law relates to the so-called ‘crisis’ we see today in labour law’s personal scope.

An Ontology of Capitalism

This chapter develops an ontological framework through which to explore law’s relationship with capitalist social relations. It draws on insights from critical realism, before developing its ontology through an engagement with the immanent social critique associated with Marx’s Capital. The first section introduces critical realism and its theory of social reality and explains what we can take away from this theory for the purposes of law and legal analysis. This section focuses specifically on how critical realism can contribute to our understanding of the nature, and origins, of social structures and how they influence human behaviour. The second section makes some suggestions about how to refine the critical realist ontology, with a particular focus on the importance of exploring the historical specificity of particular forms of society, and relatedly, of the concepts and categories that are intrinsic to them. Drawing on Marx’s mature critical theory, the third section uses the insights from the previous sections to explore in detail the basic structure of capitalism and to identify and explain the emergence of its constitutive categories before teasing out the implications of this analysis for our understanding of law’s ‘constitutive’ role—the various functions it performs in the context of capitalism. The analysis in this chapter will lay the groundwork for a more detailed analysis of the legal form in Chapter 3.

The (Return of the) ‘Market Wage’

This chapter explores the legal framework concerning workers’ right to be paid as it developed from the late 1970s. The first section explains the background of the Wages Act 1986 before explaining how the Act has altered the legal regime concerning the worker’s right to be paid. The second section explores reforms to the wages councils system and to the legal regime governing deductions from wages. It also discusses how changes in the way that the concepts of the wage, the salary, and remuneration, came to be conceptualized in the common law in the context of workers’ claims for payment, particularly in cases concerning the worker’s right to be paid during periods of industrial action.

Labour Law: Limits and Potential

The purpose of this concluding chapter is twofold. It is, first, to situate the book in the wider literature and demonstrate the book’s contribution to the field, both its contribution to the critical study of labour law, and to the study of social ontology and legal form more generally; and second, to revisit the questions posed in Chapter 1, with a view to exploring the wider theoretical, methodological, and practical implications of the analysis. In this respect, it draws on previous chapters to demonstrate how the analysis in the book might be used to inform debates about labour law reform.

Wages, Salary, and Remuneration—Towards a Social Wage

This chapter traces the development of minimum wage legislation through the early to mid-twentieth century. It demonstrates the significance of the concept of ‘remuneration’ in shaping the legal environment in which workers’ right to payment was coming to be conceived. The first section begins with a discussion of this concept, tracing it from its origins in the concept of the salary. The second section builds on this analysis to explore the role of these concepts—the wage, the salary, and remuneration—in experiments in wage regulation. The third section explores the link between these different concepts and the emerging relational model of the contract of employment. The fourth section shows how these changes influenced the way in which minimum wage legislation came to be conceived in the mid-twentieth century, particularly in the context of the wages councils system of the 1940s. The fifth section then explores the broader implications of these changes, returning to the example of dock work and the various ‘decasualization’ policies of the era.

The Emergence of the Wage

The first section of this chapter begins the genealogy of the wage with an analysis of the emergence of wage labour in the years following the Norman conquest. The second section explores the development of the category of the wage through the statute of labourers and the early common law as it applied to ‘service’. The third section discusses the wage in the context of the poor law and the system of settlement of the seventeenth century. The fourth section in the chapter explores how changes in the eighteenth and nineteenth centuries, and the emergence of a labour market, affected the legal conception of the wage, an analysis that is continued in the fifth section which explores some of the social problems that emerge in this context, and the early forms of labour market regulation that developed in ‘response’. The sixth section analyses early legal responses to the problem of ‘sweated labour’, the development of the first minimum wage legislation, and the Trade Board Act, before discussing early responses to the problem of casualism, particularly as it manifested in the context of the docks.

The Wage

The purpose of Part II of this book is to explore, at a more concrete level, the relationship between law and capitalist social relations, through a close genealogical study of the social category of the wage. This means tracing the evolution of this category through legal discourse, as capitalism developed in the United Kingdom. Chapter 4 will lay the groundwork for this analysis by specifying the methodological assumptions underpinning this genealogical analysis, while exploring, in more detail, how the contradictions inherent in capitalism manifest in the social category of the wage. The first section explains the nature, and importance, of ‘genealogy’. The second section explores two different conceptions of the wage in economic theory, with a view to teasing out the nature and significance of the wage as a social category and the contradictory functions it performs in capitalist society. The third section discusses the relevance of these ideas to our understanding of law’s role in relation to wage regulation, and employment status, by showing how approaches to these questions are influenced by legal actors’ beliefs about law’s ontology.