AlanBogg DoctrinalMethodLabourLaw2023

DOCTRINAL METHOD IN LABOUR LAW: POTENTIAL, PROBLEMS,
PROSPECTS
This is a draft chapter/article. The final version will be available in Alysia Blackham and
Sean Cooney (eds), Research Methods in Labour Law: A Handbook forthcoming 2023,
Edward Elgar Publishing Ltd.
The material cannot be used for any other purpose without further permission of the
publisher, and is for private use only.
Alan Bogg, Professor of Labour Law, University of Bristol
I am very grateful to Alysia Blackham, Pat Capps, ACL Davies, and Mia Ronmar for very helpful
comments on an earlier draft. All remaining errors are my own responsibility.
Keywords: Doctrinal method, black letter law, legal reasoning, labour law, legal methodology
Abstract: This chapter examines the role of doctrinal method in labour law. It explores doctrinal
method in terms of Neil MacCormick’s account of ‘rational reconstruction’. On this approach,
law has an immanent aspiration to develop as a coherent body of interconnected norms and
rationalising principles. Historically, there is a long tradition of ‘rational reconstruction’ in labour
law scholarship. This has sometimes been obscured by hostility to doctrinal method because of a
worry that it is aligned with politically regressive outcomes for workers. The chapter then explores
some leading contemporary examples of doctrinal scholarship across three different genres of
doctrinal writing: case notes, monographs, and textbooks. Finally, it concludes by defending
doctrinal method against some common objections. It nevertheless concedes that general doctrinal
coherence is more difficult to achieve in labour law compared with private law, given the
dominance of statute and political contestation of legal norms.
Electronic copy available at: https://ssrn.com/abstract=4474261

‘I am constantly in awe of the great mastery that the best legal scholars show of their
subject. I regard theirs as an intellectual discipline in its own right that should not be
colonized by any other…I also greatly regret the wider tendency, in the UK academy, to
pressurize academic lawyers to be more interdisciplinary, or at any rate to move away from
purely blackletter work, a tendency which so far as I can see mainly reduces the quality of
scholarship emanating from law schools and takes them one step closer to becoming trade
schools. Why should a great lawyer have to double up as a mediocre philosopher or
sociologist to be eligible for research funding? Why should the great works of the best legal
commentators, such as Smith and Hogan or Treitel, now be sidelined as ‘student
textbooks’? This is not law schools becoming more intellectual. It is law schools becoming
less intellectual, as often first-rate academic law is marginalized in favour of often second-
rate interdisciplinarity.’1
I Introduction
What is doctrinal scholarship? Does it have any intellectual value? And if it does have intellectual
value in public and private law, does it retain this value in a specialised discipline like labour law?
For some years now, doctrinal scholars in the legal academy have been on the defensive.
‘Interdisciplinarity’ became a fashionable watchword for funders and research bureaucrats. If one
was interested in ‘black letter law’, it was usually best to keep that private vice to oneself in certain
law departments. It was regarded as the dubious intellectual pursuit of the unambitious mind,
content merely to describe the latest case or statute without that frisson of critical or social theory.
More recently, there have been strong defences of the value of doctrinal scholarship, and reflection
on its distinctive methods, by leading legal scholars.2 Doctrinal law has started to recover its
intellectual self-confidence in the academy. This resurgence has provoked interesting engagements
on the nature, value, and methods of doctrinal scholarship from defenders and skeptics alike.3
Doctrinal scholarship now seems poised for a renaissance in the universities. This is unlikely to be
at the expense of other methodologies. And nor should it be. The flourishing university law faculty
should reject all forms of dogmatism, methodological or otherwise. Dogmatism is poisonous to
free enquiry into truth, and anathema to higher learning.
1 John Gardner, ‘Putting Legal Philosophy in its Place’ (2012) Rivista di filosofia del diritto (2012) 253.
2 For a recent defence, see Jason N E Varuhas, ‘Mapping Doctrinal Methods’, in P. Daly and J. Tomlinson (eds),
Researching Public Law in Common Law Systems (Cheltenham, Edward Elgar, 2022). From a Nordic legal perspective,
the critical legal positivist work of Professor Tuori explores related themes within the context of a different legal
culture: see Kaarlo Tuori, Critical Legal Positivism (Routledge 2002) and Kaarlo Tuori, European Constitutionalism
(Cambridge University Press, 2015).
3 Geoffrey Samuel, ‘Can Doctrinal Legal Scholarship Be Defended?’ (2022) 4 Amicus Curiae 43.

This chapter will reflect upon these debates within the context of labour law. The arguments are
focused on specific examples taken from UK doctrinal scholarship, but they offer general
reflections relevant to doctrinal scholarship in any legal system. The specific conclusions may of
course vary across countries. For example, there are differences between the weights attached to
different sources of law, and different legal cultures may lead to variation in the interactions
between scholars and judges. It is also the case that the UK system of labour law was unusually
late in its juridical development, compared with many European code-based systems. The
historically regressive influence of the common law may also be an important factor in
understanding the contemporary role of doctrinal scholarship in labour law. These caveats must
be borne in mind when reading this chapter from the perspective of another legal system.
The chapter is divided into four substantive parts. In the following section, I examine the historical
context to doctrinal method in labour law. There has been a tendency to regard doctrinal
scholarship as marginal to the strongly sociological orientation of scholars such as Otto Kahn-
Freund. I will argue that this is a misconception. Kahn-Freund was a brilliant doctrinal scholar and
a master of sociological method. These elements of his legal scholarship were mutually enriching.
It is a distortion to view them as conflicting enterprises. The legal philosopher Neil MacCormick
has provided an influential and illuminating account of doctrinal method in terms of ‘rational
reconstruction’.4 ‘Rational reconstruction’ of doctrine presents legal norms in a unified, coherent,
and systematic light. Drawing upon specific examples from Kahn-Freund’s work, we can see that
this ‘reconstructive’ doctrinal method was central to his work as a legal scholar.
The third section rejects a popular view of legal reasoning that accentuates its formalistic
properties. On this formalistic view, legal reasoning is deductive and strictly limited to reasoning
from authoritative legal sources. This is sometimes (mistakenly) associated with a legal positivist
account of legal reasoning. In contrast to this caricature, many positivist accounts of legal
reasoning emphasise its permeability to moral norms and empirical evidence. These norms are
‘external’ to the legal system yet relevant to legal reasoning. The chapter will engage closely with
the work of Joseph Raz and John Gardner on legal reasoning as practical reasoning. This open
quality of legal reasoning means that it is important for doctrinal scholarship to engage with other
disciplines. There is a particularly close connection between legal and moral reasoning as forms of
practical reason. The very nature of legal reasoning itself means there is no place for warring
methodologies in the academy. The flourishing of doctrinal scholarship depends upon its
engagement with flourishing traditions in empirical, socio-legal, critical, economic, and
philosophical approaches to law.
The fourth section explores the techniques of doctrinal method in light of this ‘open’ account of
legal reasoning. Jason Varuhas has offered a powerful defence of doctrinal method in public law
scholarship, identifying a ladder of methods in terms of increasing sophistication and rigour.5 For
Varuhas, the ‘highest’ form of scholarship is ‘interpretive’ theory that rationalises the doctrinal
field in light of its deep background principles. In contrast to this ‘hierarchy of methods’ approach,
4 Neil MacCormick, ‘Reconstruction after Deconstruction: A Response to CLS’ (1990) 10 Oxford Journal of Legal
Studies 539.
5 Varuhas, n 2.

the chapter explores different genres of doctrinal writing using specific examples from the
literature: case notes, treatises on specific areas of labour law, and general textbooks. There are
differences of scale and specificity across these genres of writing. However, the best examples
within each genre display all the intellectual features of ‘rational reconstruction’.
Given the ‘political’ nature of labour law as a discipline, and the dominance of statute as a form of
law-making, the ‘interpretive’ method may not be the best doctrinal approach in every context.
The relentless quest for general coherence can distort the legal materials where the norms
themselves are messy and reflect sharp political and material conflicts. In these situations, the best
that can be achieved may be for doctrinal scholarship to expose the conflicts and legal
inconsistencies, and to resist the urge to obscure them through rationalisation. The raw legal
material must be capable of supporting a coherent interpretation. The doctrinal scholar still makes
an important intellectual contribution in identifying doctrinal areas that are beyond the reach of
‘rational reconstruction’.
In the final section, I examine some problems and controversies in doctrinal scholarship: is
doctrinal scholarship in labour law a form of collaboration or complicity in class oppression?
Should labour lawyers treat judges as foes rather than friends? Is doctrinal advocacy the same as
doctrinal scholarship? I believe that each of these questions can be given a satisfactory answer.
Doctrinal scholarship in labour law has an admirable past that has sometimes been overlooked. It
also has an exciting future ahead of it as new areas of legal regulation emerge, such as algorithmic
management and environmental sustainability in labour markets. Wherever there is a need for legal
ordering, the coherence of legal norms will continue to be an important dimension of legality and
the rule of law. At its best, doctrinal scholarship can provide a lamp in the darkness when the legal
way ahead is unclear or confused. As Professor Stapleton has observed, there are few things as
exhilarating as that for the legal scholar starting her professional journey.6
II Doctrinal method in historical perspective
There can be little doubt that doctrinal method in labour law has struggled with an esteem problem
with deep historical roots. In his leading article on the ‘productive disintegration of labour law’,
Hugh Collins provided a panoramic overview of the methodological shifts from the post-war
period onwards.7 The ‘productive disintegration’ of the discipline flowed from the contextual
nature of labour law as a legal field. It assembled legal norms relevant to employment and work
from a broad range of first-order legal compartments, such as contract, tort, property, and
administrative law.8 Its contextual nature was also reflected in an openness to other disciplines
such as industrial sociology, macroeconomic policy, political and social rights, and theories of
social justice.
6 Jane Stapleton, Three Essays on Torts (Oxford, OUP, 2021) describing ‘reflexive tort scholarship’ as academics
engaged with Bar and Bench.
7 Hugh Collins, ‘The Productive Disintegration of Labour Law’ (1997) 26 Industrial Law Journal 295.
8 Alan Bogg, ‘”Labour Law is a Subset of Employment Law” Revisited’ (2020) 43 Dalhousie Law Journal 479.

The post-war pluralist conceptualisation of labour law, with legal norms organised by their
relations with the social institution of collective bargaining, marked a decisive break with the older
nomenclature of ‘Industrial Law’ or ‘Master and Servant Law’. The doyen of this sociological
approach to British labour law was Otto Kahn-Freund.9 The older disciplines reflected ‘the style
of legal scholarship of the day, the materials discussed were exclusively legal in origin, with detailed
discussions of the statutes and brief examinations of the relevant cases.’10 According to Collins,
the very first issue of the Industrial Law Journal in 1972 contained a brilliant example of the new
contextual approach. It was authored by Lord Wedderburn and addressed the regulatory problems
of multinational enterprise in national labour law. It exemplified the break with doctrinal method,
‘where more than half of an article bristling with references to politics, sociology, and economics
was passed before he mentioned a case or a statute.’11 The eclipse of doctrinal scholarship even
seemed to coincide with the emancipation of labour from the shackles of 19th century Master and
Servant law. It marked the transition from darkness into light. It is hardly surprising that the
modern labour lawyer should be suspicious of doctrinal analysis.
In certain respects, of course, these specific reservations about doctrinal method in labour law
reflected broader reservations about the general state of legal scholarship in the English
universities. In Lord Wedderburn’s reflections on Kahn-Freund’s intellectual legacy, he offered
the historical observation that most social scientists in the early post-war period viewed law
faculties as inferior parts of the social science academy, populated by failed practitioners.12 Some
senior members of the English judiciary disparaged the very idea that law was a fit subject of
academic study in a university.13 This was hardly a propitious setting for a flourishing tradition of
legal epistemology and method. Yet it would be a serious mistake to conclude from this that
doctrinal method was marginal to Kahn-Freund’s scholarship. Of course, he was a master of the
sociology of law, following his great teacher Hugo Sinzheimer.14 Yet he was also a brilliant civilian
lawyer and comparatist, immersed in the civilian tradition of dogmatic legal reasoning, taxonomy,
and the internal logic and coherence of doctrinal categories.15 True enough, Kahn-Freund rejected
the ‘trade school’ approach to doctrinal legal study prevalent in English universities at that time.
For Kahn-Freund, however, dogmatic legal analysis was far more than the mere cataloguing of a
mass of discrete rules lifted from the decided cases. His sociological approach to labour law ‘not
only complemented, but also enriched, the systematic technical-legal analysis of positive law.’16
The rigorous execution of dogmatic legal reasoning was reflected in many pieces of bravura legal
9 For an account of Kahn-Freund’s intellectual development, see Ruth Dukes, ‘Otto Kahn-Freund and Collective
Laissez-Faire: An Edifice Without a Keystone?’ (2009) 72 Modern Law Review 220.
10 Collins, n 7, 295.
11 Ibid., discussing K.W. Wedderburn, ‘Multinational Enterprise and National Labour Law’ (1972) 1 Industrial Law
Journal 12.
12 Lord Wedderburn, ‘Otto Kahn-Freund and British Labour Law’, in Lord Wedderburn, Roy Lewis, and Jon Clark
(eds), Labour Law and Industrial Relations: Building on Kahn-Freund (Oxford, OUP, 1983) 29, 30.
13 According to Wedderburn (ibid.), Lord Diplock told an assembled conference of law teachers in 1966 that he did
not regard law ‘as a fit medium of liberal education’.

14 Ruth Dukes, ‘Constitutionalizing Employment Relations: Sinzheimer, Kahn-Freund, and the Role of Labour Law’
(2008) 35 Journal of Law and Society 341.

15 On the civilian dogmatic tradition, see Samuel, n 3, 44-46.
16 Jon Clark, ’Towards a Sociology of Labour Law: An Analysis of the German Writings of Otto Kahn-Freund’, in
Lord Wedderburn, Roy Lewis, and Jon Clark (eds), Labour Law and Industrial Relations: Building on Kahn-Freund
(Oxford, OUP, 1983) 81, 83.

analysis of cases and legislation. These pieces of doctrinal scholarship were always attentive to the
operation of positive legal norms in their broader social context.
Kahn-Freund as doctrinal scholar: introduction to the method of ‘rational reconstruction’
Kahn-Freund certainly rejected what might be described as crude doctrinal method, such as the
mere description or cataloguing of legal rules. What were the main elements of his own doctrinal
method? These were set out in his valedictory address to the London School of Economics and
Political Science following his election to the Chair in Comparative Law in Oxford, in ‘Reflections
on Legal Education’ (‘Reflections’).17 These reflections are intensely moving, with the older Kahn-
Freund indebted to the dogmatic civilian legal training acquired by the young Kahn-Freund in pre-
war Germany before fleeing as a refugee. The mark of a rigorous university legal education was
that the student ‘must go through the process of rigid deductive argument from the premiss set
by statute or precedent. He must not be allowed to go around it by escaping into talk about politics,
he must go through it. But he must go through it and not get stuck in it.’18
A liberal university education facilitated this dual perspective – the dogmatic and the sociological
– on legal reasoning. It could not be replicated in an apprenticeship-style professional training.
The distinctive contribution of the legal scholar to dogmatic legal knowledge was exemplified in
three main intellectual activities. The first was the distillation of techniques and principles of
‘general legal education’ which transcended the detailed and specialist knowledge acquired through
advising and litigating in narrow areas of law. This ‘general legal education’ also contributed to the
preservation of the ‘unity of the legal system’.19 It presented legal norms as linked elements in a
single unified system.20 The second was the systematic development of compartments of legal
knowledge such as contract, torts, family law, or the law of taxation. The tradition of textbook and
treatise writing was especially valuable in this regard, developing a coherent account of legal areas
in terms of the abstract principles that elucidated the cases and statutes. The third was the
formulation of ‘an alphabet of legal concepts out of the casuistry of rules and precedents.’21 This
mode of principled clarification also contributed to the process of law reform, including
codification. Codification of the law, based on a clarified ‘alphabet of legal concepts’, supported
rule of law values by making the law clearer and more accessible to ordinary citizens.22
Can these distinct activities of the doctrinal scholar, as articulated by Kahn-Freund, be understood
as a unified intellectual approach? Neil MacCormick’s account of legal dogmatics as ‘rational
reconstruction’ provides a rich theoretical account of what Kahn-Freund is describing in
‘Reflections’.23 It arises out of MacCormick’s more general reflections on the nature of legal
reasoning. According to MacCormick, ‘rational reconstruction’ is ‘the production of clear and
17 O. Kahn-Freund, ‘Reflections on Legal Education’ (1966) 29 Modern Law Review 121.

18 Ibid. 129.
19 Ibid.
20 Although Kahn-Freund himself does not draw this link, this concern with unity and systematicity was reflected in
the work of H.L.A. Hart in The Concept of Law, which was first published in 1961.
21 Kahn-Freund, n 17, 131.
22 Ibid.
23 MacCormick, n 4.

systematic statements accounting for statute law and case law in terms of organizing actual or
hypothetical decisions both to their factual bases and elaborated out of the authoritative
materials.’24 This brings the creative intelligence of the scholar to bear on the mass of legal
authorities. It reconstructs those materials and presents them as a rational, coherent and systematic
whole rather than as a disparate mass of disconnected rules. It understands legal reasoning as a
mode of general practical reason. Much of legal reasoning is deductive in the derivation of
propositions from the application of binding legal rules. In harder cases, the application and
development of legal doctrine will depend upon the general principles which explain and justify
those rules.25 Legal reasoning is also allied with the rule of law virtues of consistency, clarity, and
coherence. Legal coherence goes beyond the avoidance of contradictions; it aspires to a positive
ideal of ‘making sense of the system as a whole, by making sense of branches of it at a time.’26 As
an exemplar of this ‘rational reconstruction’, MacCormick gives the example of Gaius’ Institutes.27
This retrieval of Kahn-Freund as a doctrinal scholar engaged in ‘rational reconstruction’ may be

regarded as a bold claim, heretical even. After all, much of Kahn-Freund’s work was concerned to
emphasise the limited role of law in regulating labour relations, and the primacy of social norms
over legal norms.28 To make good on the characterization, I will give two specific examples of the
‘rational reconstruction’ methodology from his work on British labour law.
Kahn-Freund as doctrinal scholar: (i) collective laissez-faire; (ii) the contract of

employment
The first example of Kahn-Freund’s ‘rational reconstruction’ is his ingenious rationalization of the
British system of collective labour law in terms of ‘collective laissez-faire’. This terminology of
collective laissez-faire described the tendency of the law to support the autonomous processes of
collective bargaining. It emphasized the relative abstention of direct legal regulation of collective
bargaining and the individual employment contract.29 Perhaps for this reason it is not conventional
to regard collective laissez-faire as an exercise in doctrinal analysis.
This obscures the fact that collective laissez-faire was based upon a sophisticated taxonomy of
legal norms.30 This taxonomy was functional in nature. It differentiated legal norms according to
their specific functions in relation to collective bargaining. Like Kahn-Freund, Wedderburn also
rejected the tendency to view law as ‘monotypic’ by a discriminating attention to its different
functions.31 Three functional norm-types could be identified in this taxonomy of collective labour
laws: the ‘negative’ function; the ‘auxiliary’ function’; and the ‘restrictive’ function. The ‘negative’
24 Ibid. 556.
25 Neil MacCormick, Legal Reasoning and Legal Theory (Oxford, OUP, 1994) 152.
26 Ibid. 266.
27 MacCormick, n 4, 557.
28 See Alan Bogg, The Democratic Aspects of Trade Union Recognition (Oxford, Hart, 2009) chapter 1.
29 Otto Kahn-Freund, ‘Legal Framework’, in A.D. Flanders and H.A. Clegg (eds), The System of Industrial Relations in
Great Britain (Oxford, Blackwell, 1954) 42.

30 Alan Bogg, ‘Juridification in industrial relations’, in G. Gall (ed), Handbook of the Politics of Labour, Work and
Employment (Cheltenham, Elgar, 2019) 180.

31 K.W. Wedderburn, ‘Labour law and labour relations in Britain’ (1972) 10 British Journal of Industrial Relations 270.

function described statutory legal norms that excluded common law doctrines, such as restraint of
trade or tort liabilities, that impeded the collective action of social groups.32 The ‘auxiliary’ function
described legal norms that provided direct or indirect support to autonomous collective
bargaining, such as union recognition procedures or extension machinery for collective
agreements.33 The ‘restrictive’ function specified the boundaries of lawful strike action by imposing
procedural and substantive limitations on its exercise.34
This theorization of the role of law in collective labour relations displays some fundamental
features of ‘rational reconstruction’. It offered a taxonomy of norm-types based upon functional
differentiation. It presented these norms as systematic elements in a larger whole. Finally, it provided
an account of the law as coherent in light of an abstract organizing principle, collective laissez-faire. In
sum, it was a brilliant and creative rationalization that systematized an entire body of law and
presented it in a coherent light. At the same time, it had also ‘held a mirror to the face of British
labour law in which it could at least recognize its character.’35 In this respect, the theory of
collective laissez-faire charted the difficult middle course in ‘rational reconstruction’. Kahn-
Freund’s theory of collective laissez-faire was concerned both to place the legal structure in a
morally attractive light and achieve a degree of ‘fit’ with the basic legal materials in their social
context. Later accounts would critique collective laissez-faire in terms of justification and fit, but
these may be understood as interpretive disagreements about the best legal interpretation.36
The second example of ‘rational reconstruction’ is Kahn-Freund’s analysis of the contract of

employment. This was set out in two justly celebrated pieces published late in his career. These
were both concerned with legal taxonomy, and the influence of doctrinal categorization on the
rational development of the law of the employment contract. In ‘A Note on Status and Contract
in British Labour Law’, Kahn-Freund examined the variety of senses in which ‘status’ and
‘contract’ were deployed as analytical concepts.37 The puzzle for Kahn-Freund was how English
writers so readily detected a reversion to ‘status’ in legal measures ‘which leave the parties free to
contract or not to contract, but restrict their freedom to contract except on certain minimum
terms’.38 The confusion arose out of a stunted legal taxonomy in English law. For the Continental
lawyer, ‘the distinction between jus cogens and jus dispositivum, between “imperative” and “optional”
norms of the law of contract’, was fundamental.39 It reflected the Civilian taxonomical distinction
between ‘general norms applicable to all contracts and special norms applicable to defined types’.40
By contrast, English contract law was strongly rooted in the intentions of the contracting parties
and a general ideology of freedom of contract. The practical consequences of faulty taxonomy for
rational legal development were significant. Mandatory norms based in protective employment
32 Ibid. 272.
33 O. Kahn-Freund, ‘Industrial relations and the law: retrospect and prospect’ (1969) 7 British Journal of Industrial
Relations 301, 302.
34 Ibid.
35 Wedderburn, n 12, 45.
36 See, e.g., K. D Ewing, ‘The State and Industrial Relations: “Collective laissez-faire” Revisited’ (1998) 5 Historical
Studies in Industrial Relations 1.

37 Otto Kahn-Freund, ‘A Note on Status and Contract in British Labour Law’, in Otto Kahn-Freund, Selected Writings
(London, Stevens & Sons, 1978) 78 (first published in (1967) 30 Modern Law Review 635.)
38 Ibid. 83.
39 Ibid. 84.
40 Ibid.

statutes were generally treated as an extra-contractual source of regulation, rather than integrated
into the employment contract itself. This was because it was difficult to conceptualise mandatory
regulation within a contractual framework.
In the second piece, ‘Blackstone’s Neglected Child: The Contract of Employment’, Kahn-Freund
explored the long-term consequences of Blackstone’s taxonomy on the legal development of the
employment contract.41 Blackstone had positioned the employment relationship in the ‘law of
persons’, treating the master and servant relation as akin to personal domestic relations. The effect
of this taxonomical choice was to impede the legal rationalization of employment as a contractual
category. In so doing, it reinforced the ‘atrophy of the contract of employment’ in the English
legal system.42 While this ‘atrophy’ no doubt reflected an unwillingness to litigate the contract, and
a preference for non-legal ‘voluntary’ dispute resolution through collective procedure, Kahn-
Freund’s genius as a doctrinal lawyer was to understand the juridical dimension. This provided a
historical explanation for the conceptual gap in English law as regards mandatory contractual
norms that were jus cogens, identified and critiqued in his earlier piece, ‘A Note on Status and
Contract in British Labour Law’. This careful engagement with matters of classification and
taxonomy surely reflected Kahn-Freund’s rigorous dogmatic training in his academic studies in
Germany. It was also an approach to legal taxonomy shaped by his sociological method. Kahn-
Freund’s main critique of Blackstone’s taxonomy, classifying employment in the law of persons
rather than in the domain of contract, was that it failed to account for an emerging labour market
composed of contractual relations. The legal category was detached from the social and economic
reality of employment. This juridical scheme became increasingly strained as industrialization
gathered momentum and legal classifications drifted further from the social reality of contracting
practices and the new legal phenomenon of the ‘labour market’.43
Geoffrey Samuel’s sophisticated reflections on legal taxonomy, and the distinction between natural
and social sciences in legal taxonomy, illuminates Kahn-Freund’s own sociological approach to
legal epistemology.44 For Samuel, an appealing legal taxonomy needed to be sensitive to social
developments. In legal science ‘one is not categorizing objects that are empirical and on the whole
lend themselves to classification. One is trying to classify objects that are fluid and whose empirical
nature can be perceived only through schemes and paradigms of which there are a range in social
science epistemology.’45 In other words, legal classification is not a neutral tool. It is not
categorizing natural facts awaiting discovery in the world. Instead, legal classification interacts
reflexively with social and economic phenomena which are often complex, dynamic, and evolving.
This is especially pertinent where legal categories are mapping institutions and relationships in
labour markets. Here, there is a particular risk that legal taxonomy ‘might end up like the London
tube map, It might be most useful and ingenious, yet bear little relationship to empirical reality.’46
41 (1977) 93 Law Quarterly Review 508.

42 Ibid. 524.
43 On the ‘labour market’ as an organising category for a legal discipline, see S. Deakin and F. Wilkinson, The Law of
the Labour Market (Oxford, OUP, 2005).

44 G. Samuel, ‘English Private Law: Old and New Thinking in the Taxonomy Debate’ (2004) 24 Oxford Journal of
Legal Studies 335.

45 Ibid. 362.
46 Ibid. 347.

As a legal sociologist and doctrinal scholar, Kahn-Freund understood this and he applied it in his
own work.
We should also note the alignment between Kahn-Freund’s reflections on taxonomy and
classification, and his practical concern with codification ‘to provide the people concerned with
clear answers to the question of what are their mutual rights and duties’.47 The coherent ordering
of legal categories enabled lawyers to formulate legal rights and duties with precision and clarity in
rational law reform. As we have seen, Kahn-Freund traced the juridical difficulty in
accommodating mandatory norms based in public policy to the absence of a sound taxonomy.
There was a pressing need for codification and law reform in the British labour law of the 1960s.
It had developed in a piecemeal way, often scattered across various statutes and sporadic judicial
decisions. In this way, the doctrinal techniques of ‘rational reconstruction’ in labour law, such as
taxonomy and coherence of doctrinal categories, were intensely concerned with practical matters
of law reform. In turn, this codification of individual employment law would contribute to the
promotion of rule of law values of clarity and accessibility.
This brief examination of Kahn-Freund’s work indicates that it would be quite wrong to view
foundational post-war scholarship as opposed to doctrinal methods. On the contrary, there was a
highly developed tradition of doctrinal scholarship. These doctrinal methods elucidated labour law
as a coherent and unified field. This field was rationalized by abstract general principles such as
collective laissez-faire. It developed a rich taxonomy of basic legal categories such as the contract
of employment and the functional classification of statutory rules (negative, auxiliary, restrictive).
While we are now accustomed to seeing Kahn-Freund as a legal sociologist, we should not
overlook his feats of doctrinal brilliance. His oeuvre was a case study in ‘rational reconstruction’.
This was doctrinal scholarship enriched through sociological method.
Obstacles to doctrinal scholarship in historical perspective
This retrieval of a doctrinal tradition in Kahn-Freund’s work should not lead us to over-emphasise
its maturity. There were three main factors militating against the extensive development of
doctrinal scholarship in labour law. These factors meant that it was not as highly developed as
doctrinal work in general private law, for example. Here, the literary form of the common law
treatise was highly developed. In labour law, by contrast, the treatise as literary form was associated
with the unenlightened era of Master and Servant law.
The first factor was the brute quantitative paucity of positive law. For much of the 20th century,
there were relatively few judgments simply because there was limited litigation on the employment
contract. It was not until the 1970s that an extensive statutory ‘floor of rights’ for individual
employees was implemented. Until this period, (limited) statutory regulation mostly supported
47O. Kahn-Freund, ‘Industrial Relations and the Law – Retrospect and Prospect’ (1969) 7 British Journal of Industrial
Relations 301, 316. Interestingly, Kahn-Freund to ‘the impending codification of the law of contract’ in his 1969
paper ‘A Note on Status and Contract in British Labour Law’ (86). This may have been referring to the early work
of the Law Commission of England and Wales, which abandoned the comprehensive codification of contract law in
favour of targeted reform of specific areas.

voluntary collective bargaining machinery. Employment disputes, individual and collective, tended
to be resolved through dispute resolution mechanisms negotiated in collective agreements. The
role of the courts was marginal, and this marginality was the object of public policy. There was
also a distrust of courts by workers and trade unions, particularly because of their repressive role
in enforcing labour discipline and common law hostility to trade unions in the 19th century.48 As
Kahn-Freund observed, ‘the great success of collective bargaining had reduced the need for the
intervention of the courts.’49 These limits on judicial involvement were regarded as a positive
benefit for workers and trade unions.
Secondly, labour law is relatively recent in emerging as a coherent and autonomous legal discipline.
In the UK, its theoretical crystallization may be dated to Kahn-Freund’s troika of foundational
general essays on British Labour Law in the 1950s.50 Compared with common law-based private
law disciplines like the law of contract, its age is measured in decades rather than centuries. Given
that labour law emerged as a response to the inadequacies of the private law of contract, the
integration of private law categories was likely to encounter scholarly resistance. The private law
of contract was a regulatory problem to be addressed, not a legal form to be emulated. In many
ways, labour law shared deeper affinities with public law rather than private law. This was reflected
in the doctrinal importance of ‘abuse of power’ and ‘fundamental rights’ as foundational concepts
in labour law.51 This alignment with public law impeded the development of doctrinal scholarship
because public law itself was only recognised as a distinct legal field in the second half of the
twentieth century. Indeed, Varuhas has suggested that the relatively late recognition of public law)
has meant that the scholarship on public law taxonomy is still relatively underdeveloped compared
with private law.52 The close doctrinal connections between labour law and public law, developing
along parallel historical tracks, has meant that labour law cannot simply ‘borrow’ its foundational
categories from public law theory. This is because they were at similar stages of taxonomical
development.
Thirdly, it has been suggested that there are necessary ‘premises of doctrinal method’ upon which
‘rational reconstruction’ depends. These include historical continuity of legal judgments and ‘a
reasonable degree of stability over time’.53 The diachronic continuity and stability of legal
judgments means that there is a better prospect of ‘rational reconstruction’ of those primary legal
materials into a coherent system. By contrast, legal discontinuity and instability means that general
coherence is likely to be more elusive. From this diachronic perspective, labour law is not obviously
characterised either by continuity or stability. For example, common law judgments from the 19th
and early 20th centuries are so patently remote from our current normative conception of
employment that it is difficult to integrate them into a coherent and unified account of the modern
common law. In terms of legal stability, labour law is a perennial site of significant legislative
48 Alan Bogg, ‘Can we Trust the Courts in Labour Law? Stranded Between Frivolity and Despair’ (2022) 38
International Journal of Comparative Labour Law and Industrial Relations 103.
49 Paul Davies and Mark Freedland (eds), Kahn-Freund’s Labour Law and the Law (London, Stevens & Sons, 1983) 34.
50 On Kahn-Freund’s troika of essays in the 1950s, see Bogg, n 28.
51 ACL Davies, ‘Labour Law and Public Law’, in Alan Bogg, Cathryn Costello, ACL Davies, and Jeremias Prassl
(eds), The Autonomy of Labour Law (Oxford, Hart, 2015) chapter 9.

52 Jason N E Varuhas, ‘Taxonomy and Public Law’, in Mark Elliott, Jason N E Varuhas, and Shona Wilson Stark
(eds), The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Oxford, Hart, 2018) chapter 3.
53 Varuhas, n 2.

activity. Over the last fifty years, this legislative activity has been marked by deep political
disagreements.54 It is not just the volume of statutory regulation that sets labour law apart from
private law disciplines such as tort or contract.55 Changes in elected government can lead to radical
shifts in legislative policy and the statutory framework of labour law. There have also been
extensive interactions with EU social law and European human rights law. Some of the difficulties
for ‘rational reconstruction’ may reflect a view that statutes are not really ‘lawyers’ law’, and that
doctrinal scholarship should focus instead on the common law position as an enduring source of
principled continuity.56 This reflects a stunted view of the legal objects of doctrinal rationalization,
which must encompass statutes as an important source of legal principles. Even then, the politics
of labour law means that there are significant obstacles to an enduring ‘rational reconstruction’.
This is because statutes are often the product of ideologies in radical conflict. The accretion of
statutory norms in large consolidation Acts, assembled from different times and arising out of very
different political projects, can pose formidable difficulties for judges searching for a coherent
statutory interpretation in a contemporary context.
III The Nature of Legal Reasoning and Doctrinal Scholarship
A dualistic perspective on legal reasoning: deductive and teleological
Legal reasoning is the central object of enquiry for doctrinal scholarship. Doctrinal scholarship
must proceed from a sound understanding of the general nature of legal reasoning. We may turn
again to Kahn-Freund for his mature reflections on legal reasoning set out in his inaugural lecture
at the University of Oxford.57 For Kahn-Freund, legal reasoning was always composed of two
elements, the ‘teleological’ and the ‘deductive’: ‘Each legal problem presents itself to the judge or
administrator under two aspects: “what should I do with this case, what is just, expedient, good
policy?” and “what conclusion can I or must I draw, or what possibilities can I derive from the
authorities which are the raw material of my decision?”’58 It was a mistake to overlook either
element in elucidating legal reasoning for it would give a ‘lopsided view of the law’.59 While it is
sometimes difficult to identify the operation of ‘deductive’ and ‘teleological’ reasoning with
precision in specific judgments, any satisfactory doctrinal account of the law must be attentive to
both modes of reasoning.
54 The classic legislative history of labour law in the post-war period is still Paul Davies and Mark Freedland, Labour
Legislation and Public Policy (Oxford, OUP, 1993).
55 As Goudkamp and Murphy have argued, theories of tort law also encounter magnified difficulties in rationalizing
statutory tort law. The dimension of ‘fit’ for general theories of tort law is particularly challenging when different
legislators introduce statutory reforms sensitive to policy considerations and political needs. Legislators themselves
are not as constrained as judges in enacting new laws, for example through a doctrine of precedent. See further
James Goudkamp and John Murphy, ‘Tort statutes and tort theories’ (2015) 131 Law Quarterly Review 133.
56 Andrew Burrows, ‘The Relationship between Common Law and Statute in the Law of Obligations’ (2012) 128
Law Quarterly Review 232.

57 O. Kahn-Freund, ‘Comparative Law as an Academic Subject’, in O. Kahn-Freund, Selected Writings (London,
Stevens & Sons, 1978) 275.

58 Ibid. 278.
59 Ibid.

Some recent accounts of doctrinal scholarship appear to diverge from Kahn-Freund’s dualistic
account of legal reasoning. For Varuhas, the objective of doctrinal method is ‘to state what the law
is and to understand the law on its own terms.’60 The imperative to understand law ‘on its own
terms’ means that doctrinal method is constrained because ‘one is seeking to understand practices
that emerge from a specific set of materials. There is, so to speak, a closed or sealed system from
within which answers must be sourced.’61 From a more critical perspective, Samuel identifies an
‘authority paradigm’ in legal reasoning which has a limiting effect on the possibilities for advancing
legal knowledge.62 Legal reasoning must proceed from the authoritative sources in a legal system,
such as statutes, precedents, and judicial customs. According to Samuel, one effect of this
‘authority paradigm’ is the marginalization of interdisciplinary perspectives on legal reasoning. This
is because external perspectives from economics, sociology, or philosophy would involve the
importation of norms that lack the source-based attributes of authoritative legal norms. This would
detract from the purity of legal reasoning, which ought to be restricted to the identification and
application of legal norms. If legal reasoning is reasoning using authoritative sources, one can
readily appreciate the dominance of the ‘closed system’ characterization in both positive accounts
(Varuhas) and critiques (Samuel) of doctrinal scholarship.
How should we make sense of Kahn-Freund’s view that legal reasoning is in fact ‘open’ to other
disciplines through its ‘teleological’ dimension? One possible explanation might be the ‘labour law
is special’ argument. As a contextual legal discipline, labour law has always been open to
interdisciplinary perspectives in a way that private law categories like torts and contract have not.63
Perhaps there is a special kind of legal reasoning that is distinctive to contextual disciplines like
labour law. This seems unlikely, and it is certainly wide of the mark as far as Kahn-Freund’s own
reflections are concerned. His exploration of the ‘deductive’ and ‘teleological’ elements of legal
reasoning was offered as a general reflection on legal reasoning across different legal disciplines
and legal systems. While labour law has its own distinctive legal history, reflected in its ‘autonomy’
as a compartment of the law, this ‘autonomy’ could only be partial or ‘relative’.64 Labour law forms
part of a legal system. Its norms are legal norms and they are partly composed of general private
law norms in contract and torts. It is administered by courts, even where specialist labour tribunals
perform an important adjudicative role. There is no reason to think that there is a specialized form
of legal logic that is unique to labour law, and every reason to think that there isn’t.
Legal positivism and legal reasoning: is legal reasoning restricted to the deductive
application of legal norms?
We would do better to develop an account of doctrinal scholarship in labour law within the context
of a general theoretical account of legal reasoning. In fact, Varuhas’ account of law as a ‘closed or
sealed system’ is apt to mislead as far as legal reasoning is concerned. By contrast, Kahn-Freund’s
teleological account of legal reasoning as open to the influence non-legal norms is supported by
60 Varuhas, n 2.
61 Ibid.
62 Samuel, n 3, 45.
63 See H. Collins, ‘Labour Law as a Vocation’ (1989) 105 Law Quarterly Review 468.
64 For a thoughtful discussion of labour law’s relative autonomy, see D. Howarth, ‘The Autonomy of Labour Law:
A Response to Professor Wedderburn’ (1988) 17 Industrial Law Journal 11.

some leading philosophical accounts of the nature of legal reasoning. Doctrinal method is not
antithetical to interdisciplinary enquiry. In fact, it depends upon it.
Legal philosophy can sometimes appear remote from the more practical concerns of the doctrinal
lawyer. That is a pity. Jurisprudence can illuminate the distinctive elements of legal reasoning and
this can be invaluable to the doctrinal lawyer. It is hardly surprising that the nature of legal
reasoning should be a central concern of legal philosophy. And the doctrinal lawyer cannot really
do her job without a sound grasp of the interesting and important features of legal reasoning. For
Joseph Raz, reasoning in law is continuous with general practical reasoning. There are no special
rules of logic in the domain of legal norms. As he puts it, ‘logic is universal and encapsulates (some
of) the presuppositions of thought and communication. What is special to the law is its subject-
matter, not its logic.’65 The distinctiveness of its subject-matter is important. It means that
arguments from authority have a special role that they do not have in other domains of practical
reasoning. Characteristically, lawyers are concerned to identify those reasons which are presented
as binding legal norms by the institutions that claim legal authority in the legal system: courts,
legislatures, Ministers, local authorities. However, Raz rejects the idea that ‘legal reasoning’ enjoys
a special autonomy from other kinds of practical reasoning in virtue of the special position of legal
authorities. This is because ‘legal reasoning must, due to the indeterminacy of the law which derives
entirely in accordance with the sources thesis, go beyond source-based material’.66 In this way, legal
reasoning can never be autonomous of moral reasoning because reasoning in accordance with the law
necessitates moral reasoning. In fact, there may be nowhere else to go where the source-based law runs
out and the courts are under an institutional duty to provide a reasoned resolution to the dispute.
John Gardner has developed the idea that legal reasoning sometimes depends upon courts
applying non-legal norms simply in virtue of their merits rather than their sources. When the
source-based law is indeterminate or silent, the deductive element of legal reasoning runs out.
Judges do not simply decide cases on a personal moral whim. Nor do they legislate like elected
law-makers by freely considering a wide range of potentially relevant reasons. The judge is still
duty-bound to engage in legal reasoning to a result. For Gardner, this is reasoning ‘according to
law’.67 It describes reasoning which includes ‘already-valid legal norms among its major or
operative premises, but combines them non-redundantly in the same argument with moral or other
merit-based premises.’68 As an example, Gardner discusses the inclusion of pregnancy
discrimination within the scope of the established legal prohibition of sex-based discrimination in
the Civil Rights Act of 1964.69 The legal development of sex discrimination to encompass
pregnancy discrimination depended upon the supplementation of the source-based norm by a
moral argument. This moral argument is that pregnancy discrimination is wrongful in a similar way
to direct sex discrimination. This simple example demonstrates that law is rarely a ‘closed or sealed
system’ in hard cases at the appellate level.
65 Joseph Raz, ‘On the Autonomy of Legal Reasoning’, in Joseph Raz, Ethics in the Public Domain (Oxford, OUP,
1995) 326.
66 Ibid. 334.
67 John Gardner, ‘Legal Positivism: 5 ½ Myths’, in John Gardner, Law as a Leap of Faith (Oxford, OUP, 2012) 19, 40.
This reflects Raz’s distinction (ibid. 332) between reasoning about the law (applying existing legal norms) and
reasoning according to law (moral reasoning where the source-based norms do not determine the result).
68 Ibid. 39
69Ibid.

It is true that so much of law consists of relatively simple situations where the source-based norms
provide clear and determinate guidance. For the most part, the law quietly performs its
coordinating function without much fuss. Indeed, if it did not, it would be defective as law.
Doctrinal scholarship tends to be more focused on those difficult appellate cases where judges are
called upon to reason ‘according to law’. Doctrinal scholars must address some puzzling issues
when legal norms underdetermine a legal outcome: which moral reasons can legitimately figure in
this kind of legal reasoning? Which other kinds of non-legal reason are relevant? How does judicial
law-making differ from legislative law-making? What is the role of analogy in legal argumentation?
In what ways can general legal doctrines constrain or direct judicial choices in situations where the
judge faces a range of acceptable but incommensurable moral options? To adopt Kahn-Freund’s
dualistic description of legal reasoning, the doctrinal scholar must consider the legal limits of the
teleological perspective in legal reasoning. It should now be clear enough that the presentation of
doctrinal scholarship as opposed to interdisciplinary perspectives reflects a faulty account of legal
reasoning. Reasoning ‘according to law’ is fully integrated into moral reasoning. It will often
depend upon moral, economic and sociological expertise. Doctrinal scholarship cannot avoid
interdisciplinary engagement because in appellate cases it is not unusual to find situations where
the valid legal norm ‘plays a non-redundant but also non-decisive role in the argument.’70
Some examples of ‘dualistic’ legal reasoning in the courts
Three examples demonstrate this ‘open’ quality of legal reasoning and the vital role of ‘open’
doctrinal legal scholarship. The first is the judicial approach to collective agreements in Ford Motor
Co. v A.U.E.F.71 This involved an employer seeking a labour injunction against trade unions
because they had supported union members participating in a strike in breach of agreed procedure
in the collective agreement. The case arose in the febrile aftermath of a Royal Commission on
labour relations where the reform of collective bargaining practices had been a central focus of
public policy.72 The Royal Commission had favoured voluntary over legal reform. In Ford Motor
Co., the court decided that the procedures were not legally enforceable against the trade union
because the collective agreement was not legally binding as between the employer and trade union:
it was binding in honour only. This reflected the social reality of voluntary collective bargaining.
It was based in a deep historical attachment to voluntary self-government by trade unions and
employers, coupled with a distrust of courts.
Kahn-Freund had rationalized this social fact of British collective agreements through the doctrinal
lens of ‘intention to create legal relations’.73 Such an intention was generally absent from collective
agreements which reflected a ‘tradition of voluntarism’. In his account of this episode in legal
history, Wedderburn described the nature of doctrinal scholarship beautifully: Kahn-Freund had
‘analysed the social and legal practice; he clarified the problem; he proposed an answer; he
convinced a Royal Commission that the answer was correct; and he was (without doubt) a major
70 Ibid. 40.
71 [1969] 2 QB 303.
72 This was known as the ‘Donovan Commission’ after Lord Donovan, the Chair of the Royal Commission. See
Report of the Royal Commission on Trade Unions and Employers’ Associations, Cmnd. 3623 (1968).
73 See the discussion in Wedderburn, n 12, 44.

reason why the common law was declared to be what he had first asserted it was!’74 This also
demonstrates the reflexive interaction between doctrinal scholarship and judicial decision-making,
where the scholar’s doctrinal analysis influences the development of the case law.75
The second example is the conceptualization of the employment contract. In the early twentieth
century, dogmatic legal scholarship conceptualized the employment contract as based on ‘the
contractual equality of the employer and the employee in the exchange relationship.’76 The
principal challenge to this civil law model came through Hugo Sinzheimer’s economic sociology.
This sociological approach rejected the legal ‘mystification’ of contractual equality, recognizing
that the employment relationship was based upon hierarchy and subordination. In Jon Clark’s
words, this fundamental conceptual shift was based upon an ‘extra-legal foundation’ that required
the scholar to go beyond the positive legal norms.77 Over time, this sociological recognition of
inequality in the employment contract shaped the systematization of labour law. The purpose of
labour law was worker-protective. It was aimed at counteracting inequality of bargaining power,
regulating the employer’s authority and restraining abuses of power. The relevant legal materials
were organized and ordered around this worker-protective purpose. Over time, this doctrinal
systematization shaped the legal conceptualization of the employment contract by the courts.78 As
a result of ‘rational reconstruction’ of legal doctrine, sociological fact was translated into legal
norm. This process is continually unfolding. The law’s encounter with new technologies and
algorithmic management tools is likely to lead to further refinement of the legal theory of control
and subordination as the courts classify and legally categorize new forms of employment. The
dynamism of legal reasoning is only possible because it is receptive to new sociological and
economic information.
The final example is concerned with the increasing alignment between labour law and fundamental
human rights. Joseph Raz has drawn attention to the effects of Bills of Rights on the extent to
which courts must engage in moral reasoning to decide cases.79 Constitutional rights are generally
open-textured and this inevitably requires the courts to engage in moral reasoning in applying and
developing them as legal standards. As an example, in R (on the application of UNISON) v Lord
Chancellor (UNISON) the United Kingdom Supreme Court struck down the tribunal fees regime
as unlawful.80 This was based on its infringement of the common law constitutional right of access
to the courts.81 This fundamental constitutional right was described as ‘inherent in the rule of
law’.82 Legal claims had dropped precipitously following introduction of the fee regime. Lord Reed
74 Ibid. 45.
75 On ‘reflexive’ legal scholarship, see Stapleton, n 6.
76 Clark, n. 16, 82.
77 Ibid.
78 See Autoclenz Ltd v Belcher [2011] UKSC 41.
79 Raz, n 65, 334
80 R (UNISON) v Lord Chancellor [2017] UKSC 51. This section draws upon previous work on UNISON in A. Bogg,
‘The Common Law Constitution at Work: R (on the application of UNISON) v Lord Chancellor’ (2018) 81 Modern
Law Review 509.
81 The Supreme Court also concluded that the Fees Order breached EU law and the principle of effective judicial
protection. There was also a separate judgment by Lady Hale that offered a valuable critique of the Fees Order on
the basis of indirect sex discrimination, in which all of the Justices concurred.
82 UNISON [66].

concluded that ‘there has been a dramatic and persistent fall in the number of claims brought in
ETs…of the order of 66-70%’.83
Prior to the judgment, UNISON had lost twice in the Divisional Court and once in the Court of
Appeal. In the lower courts, the evidential gap between the aggregate statistics on plummeting
tribunal claims and the unaffordability of the fees for individual claimants had proved
insurmountable. This was because a remission scheme was available which appeared to block the
argument that the scheme was unaffordable for an impecunious claimant. In the Supreme Court,
the aggregate statistics were regarded as sufficient empirical evidence for establishing unlawfulness.
This was not a technical quibble about data. It reflected a normative argument about the importance
of general systemic effectiveness of statutory employment rights. This systemic approach was
linked to a moral interpretation of core constitutional values as aspects of the common good:
democracy, the rule of law, and the separation of powers. In fundamental rights cases like
UNISON, legal reasoning depends upon moral argument about constitutional values. Such cases
may also depend upon relevant economic data, especially in the proportionality analysis. This was
supported by academic empirical work cited before the court and which was influential in the
outcome.84 Cases like UNISON are not atypical in legal systems with constitutionalized rights.
They are now centrally important to the legal architecture of labour law in many legal systems,
given the growing importance of fundamental constitutional rights in the employment relation.
Sometimes legal doctrines specifically direct the court to consider social norms as a way of ensuring
solicitude for managerial prerogatives. For example, the ‘band of reasonable responses’ test in
unfair dismissal cases represents this kind of regulatory technique. It directs the tribunal to
consider the reasonableness of the employer’s conduct in dismissal cases by reference to extra-
legal normative standards in conventional business practices.85
IV Genres of Doctrinal Scholarship
What is it that the doctrinal scholar does when she encounters a jumbled mass of cases and
statutes? When I ask this question in graduate methodology seminar, the irritated rejoinder from
the ‘black letter lawyer’ is usually, ‘to read, think, and make sense of them!’ Still, I rarely let the
matter end there. It is opaque what it might mean for the doctrinal scholar ‘to make sense’ of the
legal doctrine. When pressed, the doctrinal scholar’s considered answer usually reflects
MacCormick’s ‘rational reconstruction’ approach. The doctrinal scholar ‘seeks to produce a
rationally coherent systematization of legal material’ and in order to do so, ‘must have the capacity
first to master in a raw form a huge mass of material and then must exercise imagination,
intelligence and insight in order bring it together into an intelligible whole.’86
83 UNISON [39].
84 A. Adams and J. Prassl, ‘Vexatious Claims: Challenging the Case for Employment Tribunal Fees’ (2017) 80 Modern
Law Review 412.
85 For critical discussion, see P. Collins, ‘Iceland Frozen Foods Ltd v Jones (1982): Fairness, Forty Years on’, in J.
Adams-Prassl, A. Bogg, and ACL Davies (eds), Landmark Cases in Labour Law (Oxford, Hart-Bloomsbury, 2022)
chapter 7.
86 MacCormick, n. 4, 557.

There are three features of doctrinal scholarship as ‘rational reconstruction’ that warrant particular
emphasis. First, it is concerned with what Varuhas has described as ‘systematization’.87 Legal
categories must be divided and ordered in a rational and intelligible fashion. This often begins with
the basic division and separation of legal disciplines. Since this is an exercise in creative
imagination, there may be competing conceptions of system. Should we organize labour law
around a distinctive contractual form, such as the personal employment contract? Or should it be
categorized around a particular type of market, the labour market? Or should it be ordered in light
of its distinctive purpose(s)? These disagreements are fruitful and productive, and should be
welcomed by the doctrinal scholar. The search for true propositions about the legal material does
not rule out the possibility that there may be reasonable yet incommensurable modes of
classification. The second feature is that the values of coherence and consistency are particularly
important to ‘rational reconstruction’. The formulation of a coherent doctrinal account depends
upon value judgements, identifying those cases which are central and which aberrant by reference
to the theorist’s criteria of significance and importance. The quest for coherence will usually
necessitate the identification of relatively general and abstract principles or propositions that
rationalize a set of judicial decisions, in what Varuhas describes as ‘derivation’.88 Finally, doctrinal
scholarship is normative. Coherence and systematization depend upon political and moral
judgements that place the settled legal material in its best moral light.
Given the character of legal reasoning as deductive and teleological, this moral dimension should
not surprise us. It is, however, normative in a particular way. In MacCormick’s words, ‘it is not
like setting up a committee or pressure group to change the law in some way. Indeed, it is not
remotely like that kind of politics.’89 That is because ‘rational reconstruction’ is concerned with
imposing normative order on a complex body of authoritative legal materials. This requires a high
level of technical doctrinal expertise. It is attentive to the authoritative sources. More
controversially, perhaps, MacCormick suggests that it would be ‘bad faith’ for a doctrinal scholar
to engage in ‘rational reconstruction’ if she does not believe that legal ordering has some moral
value.90 We will return to this in the final section, because it may explain some of the reticence
towards doctrinal scholarship by critical labour lawyers who regard the law as a morally tainted
instrument of class oppression.
There are different genres of doctrinal scholarship in modern labour law. We will consider three
genres in terms of particularity of doctrinal focus: the case note analysis; the doctrinal
rationalization of discrete parts of labour law; and the systematic study of labour law as a general
field. By considering illustrative examples, we can see how authors are fully engaged in ‘rational
reconstruction’ in each genre of writing. The difference between them is in the scale of the
analytical focus, from a tightly localized consideration of a small set of cases to a general ordering
of the disciplinary field. As we move from the particular to the general, coherence becomes more
difficult to achieve. This is exacerbated by the aggregation of statutory norms, from different
periods and reflecting different political ideologies, which makes it difficult to achieve unity and
87 Varuhas, n. 2.
88 Ibid.
90 Ibid.

coherence of the whole field. For these reasons, we would do better to evaluate different genres
in their own terms rather to think in terms of an intellectual hierarchy of doctrinal scholarship.
Doctrinal rationalization of cases
Even in sympathetic accounts of doctrinal scholarship, there is a tendency to overlook the

doctrinal analysis of specific cases or groups of cases. The humble ‘case note’ might be dismissed
as merely descriptive, a handy precis of a judgment rather than real scholarship. It can provide a
useful and pithy shortcut for the busy practitioner or the cribbing law student, perhaps, but it is a
distraction from the serious intellectual business of the legal scholar. While some case analysis
undoubtedly fits this description, there are many examples of high-level ‘rational reconstruction’
in ‘black letter’ case analysis. Any account of the immense scholarly legacy of Lord Wedderburn
would be incomplete without acknowledging his prodigious body of sophisticated ‘case notes’ on
the leading cases of the day during his editorial tenure at the Modern Law Review. These were bravura
pieces of precise doctrinal analysis. The leading specialist UK journal, the Industrial Law Journal, has
a long-established and successful ‘Recent Cases’ section that attracts outstanding contributions.
Moreover, leading generalist journals such as the Modern Law Review, the Cambridge Law Journal, and
the Law Quarterly Review have always published case notes on the leading labour cases of wider
interest to the legal community. The ‘case note’ represents a genre of doctrinal scholarship with
some examples of highly sophisticated ‘black letter’ analysis that display the best features of
‘rational reconstruction’.
ACL Davies’s note on the ‘sham’ doctrine in the Industrial Law Journal is an exemplar of this genre.
An examination of its constituent elements provides us with an anatomy of ‘rational
reconstruction’ in case analysis. The note was focused on the Court of Appeal judgment in
Protectacoat Firthglow Ltd v Szilagyi and the development of the ‘sham’ doctrine in English
employment law.91 The sham doctrine is concerned with the basic problem of employment status
and the deliberate avoidance of statutory employment protection by employers drafting written
contracts. This is achieved by drafting the written terms so that there is a discrepancy between
the written documentation and the true legal agreement. The written documentation and its terms
presents the arrangement as self-employment, whereas the reality is that it is an employment
contract warranting statutory protections. In Szilagyi, the Court of Appeal endorsed a broad
approach to tackling the evasion of statutory rights through the manipulation of contractual
documentation. In particular, it was not necessary to establish a joint intention by both contracting
parties to deceive the court as to the true legal nature of the arrangement. It was sufficient if the
true agreement, often reflected in the working practices, constituted a contract of employment.
The description of the Court of Appeal’s reasoning takes up only a small proportion of the note.
Instead, the author engages in a ‘rational reconstruction’ of the law on shams. The sham doctrine
91[2009] EWCA Civ 98. ACL Davies, ‘Sensible Thinking about Sham Transactions’ (2009] 38 Industrial Law Journal
318.

is examined in light of the distinctive features of the employment contract and the inequality of
bargaining power between employers and workers. The standard private law definition of sham,
based in a joint intention to misrepresent the true legal nature of the relationship, is unlikely to
address the social problem in the employment context.92 In sham self-employment situations, the
employer drafts comprehensive written documentation which is presented to the employee on a
take-it-or-leave-it basis. The concealment of the true nature of the arrangement is usually
orchestrated by the employer without the knowledge or connivance of the employee, for it is
designed to deprive the employee of protective statutory rights. A restrictive legal definition of
sham would therefore subvert the normative purpose of labour law which is to protect the weaker
party from exploitation.
The note also examines the sham doctrine in other proximate areas of law such as landlord and
tenant. In land law, sham arrangements are sometimes used by landlords to deprive tenants of
statutory legal protections. In exploring these analogies, the analysis evinces a concern for legal
coherence and consistency in developing a sham doctrine. It is sensitive to the moral and social
parallels between tenancies and employment. A stronger party capitalizes on its social power to
achieve a kind of ‘contracting out’ of mandatory statutory rights. Legal coherence would justify a
broader approach to identifying shams in employment law, bringing it into greater alignment with
landlord and tenant law. The note is also sensitive to some important differences between the two
contexts. In particular, the fact that genuine self-employment exists as a legitimate mode of
contracting for work meant that shams may be more difficult to detect in the employment sphere
than in tenancy arrangements. In due course, Davies’s note was cited with approval by the Supreme
Court in the landmark case of Autoclenz v Belcher.93 The arguments provided academic support for
the judicial endorsement of the broad sham doctrine in employment law. This assisted the court
in clarifying the scope of the doctrine, elucidating its broader coherence with other legal disciplines
such as tax and landlord and tenant, and providing a normative justification for developing a
worker-protective approach to employment contracts. It was an exemplar of Stapleton’s ‘reflexive’
scholarship model.94 Given their brevity and focus, case notes fit especially well within this
‘reflexive’ paradigm.
Doctrinal rationalization of discrete parts of labour law
There are many examples of doctrinal rationalization of discrete parts of labour law. I shall
consider two examples which illustrate ‘rational reconstruction’. These works are concerned with
legal doctrine at a higher level of abstraction than a single case (or set of related cases). They each
involve the systematization of a complex body of common law and statute as they relate to an area
within labour law. In each example, there are also important critiques of method that should be
considered. These critical disagreements reveal lively controversies within doctrinal method.
(i) Rational reconstruction of the law on dismissal
92 Snook v London and West Riding Investments Ltd [1967] 2 QB 786, CA

93 Autoclenz, n 78.
94 Stapleton, n. 6.

The first example is Hugh Collins’ monograph, Justice in Dismissal.95 This was a scholarly treatise
focused principally on the statutory law of unfair dismissal and its judicial development. In
taxonomical terms, unjust or unfair dismissal is a core employment wrong, corresponding to a
fundamental right not to be unfairly dismissed. The methodology of the book was set out in its
short Introduction.96 The aim of the work was not to provide a comprehensive and exhaustive
catalogue of the current law in all its permutations. Instead, the book aimed at identifying the
philosophical foundations of unfair dismissal law. This was described by Collins as the
‘interpretative stance’: ‘we examine both the legislation and the decided cases with a view to
discovering the underlying principles which best explain the political and legal decisions behind
them.’97 These abstract principles provide a reconstructive framework for the legal doctrine, and a
basis for presenting a coherent account of the legal framework. The reconstruction of doctrine in
terms of normative coherence requires the theorist to identify those cases that appear mistaken by
reference to the law’s internal standards. It had much in common with Ronald Dworkin’s
‘constructive interpretation’, interpreting the legal materials and reconstructing them to place them
in their most morally attractive light.98
According to Collins, the abstract moral foundation of the law on dismissal was the right to equal
concern and respect, and the requirement to respect the dignity and autonomy of the worker. This
formed the basis to Collins’ influential tripartite ‘taxonomy of dismissals’, which proposed a
juridical separation of disciplinary, economic, and ‘public right’ dismissals. Different legal
standards could be justified reflecting the distinctive moral considerations internal to the category.
For example, the legal regime regulating dismissals for a protected characteristic such as race is
entirely different to that regulating dismissals for gross misconduct at work. The monograph
considers other legal aspects of unfair dismissal, such as fair procedures and remedies, in light of
its philosophical foundations. Collins’ method displays all the features of ‘rational reconstruction’:
identifying a moral point to the doctrinal law based in its idealized aspirations; rationalizing a
complex body of rules in terms of abstract general principles; developing a taxonomy of dismissals
based on rationally defensible categories; and presenting the legal doctrine as a coherent whole.
The law of dismissal is heavily regulated by statute. It is striking that Justice in Dismissal engages only
lightly with the legislative history of the statutory provisions. A close examination of that history,
and the resulting statutory texts, may well have revealed significant discrepancies between Collins’
idealized ‘interpretative’ account of dismissal law and the messy politics of legislative intervention.
This highlights one of the inescapable dilemmas of ‘rational reconstruction’, and it is reflected in
the interesting critique of Collins’ methodology developed by Gwyneth Pitt.99 Pitt identifies two
fundamental problems with the ‘interpretative’ methodology as applied to dismissal law. The first
problem is that the justificatory dimension fails to ‘fit’ the settled legal materials to a sufficient
degree. Obviously, what counts as sufficient ‘fit’ cannot be precise. Sufficiency is a matter of
judgement and degree. Furthermore, the method of abstraction and the placing of legal materials
95 H. Collins, Justice in Dismissal (Oxford, OUP, 1992)

96 Ibid. 1-5.
97 Ibid. 3
98 Ronald Dworkin, Law’s Empire (Oxford, Hart, 1998).
99 Gwyneth Pitt, ‘Justice in Dismissal: A Reply to Hugh Collins’ (1993) 22 Industrial Law Journal 251.

in their most morally attractive light is very likely to involve a cost in terms of descriptive precision.
The second problem, according to Pitt, is that the ‘interpretative’ approach is a conservative
normative project. The incremental improvement of existing law circumscribes the permissible
range of political imaginaries. Sometimes, there may be a value in discarding the existing approach
entirely and starting afresh. In this way, the ‘interpretative’ approach is unduly limiting for the
purposes of law reform. While ‘rational reconstruction’ is concerned with the law as it is, it also
has an important clarificatory role in codification and restatement projects.
Pitt identifies a number of specific difficulties with the ‘interpretative’ legal analysis in Justice in
Dismissal. Here we focus on one of them. She is particularly critical of Collins’ ‘taxonomy’ of
dismissals and his classification of capability and misconduct dismissals in a single category of
‘fault’ dismissals. Obviously, the statute itself identifies ‘conduct’ and ‘capability’ as distinct
potentially fair reasons for dismissal. Judicially developed principles of procedural fairness also
vary between the two situations. For Collins, the notion of ‘fault’ as a unifying idea reflects the fact
that such dismissals are justified by reference to harm to the business and non-fulfilment of the
job requirements. This distinguishes the category from economic dismissals and civil liberties
dismissals. For Pitt, by contrast, ‘fault’ should be focused on the culpability of the employee. There
is an indignity in treating employees suffering from ill health in the same taxonomical category as
blameworthy employees who have committed theft or violence. This taxonomical reformulation
would generate distinctive substantive and remedial rules, such as a right to compensation where
there is a non-culpable dismissal for capability reasons. Her preferred ‘justice as fairness’ approach
would also provide a more radical critical basis for a reformed law of unfair dismissal.
Where does Pitt’s critique leave ‘rational reconstruction’ as a doctrinal method? Her account of
the moral distinctiveness of culpability-based dismissals is persuasive. Its recognition would
improve taxonomy. The legal division of culpable and non-culpable dismissals tracks an important
moral distinction which the law should reflect. It also has important procedural consequences. For
example, certain procedural safeguards ought to be triggered when an employee is accused of
serious misconduct. Whereas a default right to redeployment, welfare support, and retraining is
more appropriate in the procedural context of capability dismissals. There may be difficult
boundary issues where the dismissal is a response to underperformance at work, but boundary
problems are endemic to categorization. It seems to me that Pitt’s critique is not rejecting the
importance of taxonomy. She is proposing an alternative legal taxonomy that tracks a morally
salient distinction. Her critique is best viewed as a disagreement within the activity of ‘rational
reconstruction’. It is also testament to the enduring significance of Collins’ work that the dialogue
on taxonomy was prompted by the publication of his monograph which mapped the legal field
systematically for the first time.
(ii) Rational reconstruction of the law of the employment contract
The second example of ‘rational reconstruction’ is the multi-author work, The Contract of
Employment, based on a project led by Mark Freedland as senior editor.100 The enterprise of ‘rational
100 Mark Freedland and others (eds), The Contract of Employment (Oxford, OUP, 2016).

reconstruction’ of the law of the employment contract is a far more ambitious and difficult
undertaking than the law of dismissal. The law of dismissal is circumscribed in terms of its
temporal dimension (in statutory terms, from the early 1970s onwards) and focused on a narrower
range of (predominantly) statutory materials. Dismissal is merely one segment of the law of the
employment contract, relating to termination. There is a significant body of statutory law that takes
the contract of employment as its object of regulation, from its inception, through performance,
to termination. In institutional terms, the nature and significance of the contract of employment
is unusually dynamic compared with other types of contract. Its legal dynamism reflects profound
changes in labour markets, the regulatory role of collective bargaining, the professionalization of
human resource management in large organizations, and the juridification of contractual relations.
This social and economic context creates formidable challenges for doctrinal reconstruction
because historical continuities in doctrinal development are inherently unstable and politically
controversial. The contract of employment is also a site of intersection between statutory
regulation and common law doctrine. There is a dual challenge for legal coherence. It must deal
with a body of doctrine that has developed in a context of high social and economic flux. And this
doctrine is composed of a large body of statutory law enacted by governments with radically
different political priorities, alongside common law doctrines developed by the judges.
Freedland addresses these challenges head on in the foundational chapters.101 The methodology
of this treatise-style work is described as a ‘normative reconstruction of the law of the contract of
employment’.102 In elaborating this methodology, Freedland distinguishes ‘external’ from ‘internal’
critique. In external critique, the theorist endorses moral and political values independently of the
current legal materials. By contrast, internal critique is based on values and policies ‘which are to a
greater or lesser extent latent in or influential upon the current law of the contract of
employment’.103 Freedland defends the method of internal critique for doctrinal scholarship. This
is ‘motivated by a desire to explore its own latent normative elements, thus amounting ideally to a
normative reconstruction from the inside rather than a critical evaluation from the outside.’104 While this
internal method does not eliminate normative controversy, given the pluralistic values latent in the
law, it does provide a more objective grounding to the exercise of rational reconstruction. To
invoke MacCormick’s words again, internal critique ‘is not like setting up a committee or pressure
group to change the law in some way. Indeed, it is not remotely like that kind of politics.’105
External critique risks eliding the important distinction between activism and scholarship.
Internal critique depends upon the identification of values that are ‘latent’ in the law. In Freedland’s
view, doctrinal scholarship is particularly concerned with the activities of courts and judges.106 This
may reflect a tendency in private law scholarship to devalue statute and treat the common law as
the repository of fundamental norms. This could marginalize the recognition of worker-protective
values underpinning extensive statutory interventions. To counter this, and no doubt to buttress
the internal worker-protective aims of the law, the treatise treats common law and statute as ‘an
101 Ibid. chapters 1 and 2.

102 Ibid. 18.
103 Ibid. 19.
104 Ibid. 23.
106 Freedland, n 100, 20.

ultimately consolidated and inseparable body of legal doctrine.’107 This fusion of statute and
common law provides the basis for a derivation of three general structural principles that unify the
specific doctrinal elements of the law of the employment contract: the exchange principle
(reflecting notions of ‘fair exchange’ of work and remuneration in the context of personal work);
the integration principle (where there is an exchange of personal work for remuneration, the
worker ought to be treated as integrated within the organization of the employer); the reciprocity
principle (where the exchange principle is satisfied, the parties should be regarded as committed
to reciprocal cooperation). These principles are formulated at a high level of abstraction. In
essence, they provide a strongly normative conception of the employment contract as providing
for stability and dignity at work. The remainder of the treatise provides a systematic account of
specific doctrines in light of these abstract justificatory principles.
This work attracted a rich critical review essay by one of the leading English appellate judges, Sir
Patrick Elias.108 The essay provided a powerful methodological rejoinder to The Contract of
Employment. Given the importance of the internal viewpoint to the doctrinal method,109 the judicial
perspective on doctrinal method is particularly interesting. The essay develops a skeptical thesis
on the scope for unity, abstraction, and coherence in the law of the employment contract. In short,
to impress a degree of unity and coherence on a doctrinal area that has been shaped by politicized
statutory interventions can undermine technical precision in relation to specific doctrines. When
this occurs, the price of coherence may be doctrinal distortion. For Elias, successful rational
reconstruction in labour law must accommodate pluralistic and incommensurable values. These
are embedded in the law. The doctrinal scholar may need to adopt a looser attachment to overall
systemic coherence. Sir Patrick observes that there is a single unifying point behind the three
structural principles, probably shared by all the treatise authors, which is that the law should
counteract the inequality of bargaining power between employers and employees.110 In an
intriguing observation, Sir Patrick suggests that this normative unity ‘has its drawbacks—in
particular a certain predictability in the analyses perhaps stemming from a cast of mind which I
suggest approaches decisions in favour of the employer more sceptically than those in favour of
the employee.’111 Quite apart from the tedium of intellectual uniformity, this may expose a tension
between normative unity and the pluralistic conflict of interest between employers and workers.
Throughout its modern history, labour law has developed as the law for employees and employers.
Many legal doctrines preserve a latitude for managerial freedom and flexibility. There is a price to
pay in terms of descriptive adequacy where doctrinal accounts negate values of commercial
freedom that have been recognised by courts and legislatures. Elias is particularly critical of the
idea that judges can develop legal doctrines to prohibit exploitative contractual arrangements such
as ‘zero hours’ arrangements: ‘The courts cannot simply ignore express terms or apply some
general doctrine of unconscionability to invalidate a contract because of unequal bargaining power.
107 Ibid. 24-25.

108 Sir Patrick Elias, ‘Changes and Challenges to the Contract of Employment’ (2018) 38 Oxford Journal of Legal Studies
869.
109 Varuhas, n. 2.
110 Elias, n. 108, 872.
111 Ibid.

The remedy must lie in legislation.’112 The courts must operate within appropriate constitutional
limits. This includes fidelity to the general norms of contract law, such as freedom of contract, and
the purposive application of statutes. Often, the legislator will be better placed to consider the
advantages and disadvantages of casualised work, and to implement tailored legislation targeted at
specific exploitative abuses. The legislature also enjoys a democratic legitimacy to reform the law,
and with a wide creative freedom, compared with courts.
These institutional concerns also underlie Elias’ rejection of Freedland’s ‘fusion’ view of common
law and statute as a composite body of norms: ‘I confess to having considerable doubts as to
whether it is either accurate in a descriptive sense or desirable in a normative sense to link the
development of the common law to the shifting patterns of potentially highly political
legislation.’113 For Elias, it is better to acknowledge the interactions between them, while also
recognizing that statute and common law are ‘distinct sources of law which are subject to their
own distinct principles.’114 Labour statutes may be ‘highly political’ and are implemented
episodically through discrete legislative acts, in contrast to the relatively enduring common law
principles developed by judges. This political context to legislating limits the coherence that can
be achieved through rational reconstruction.
Finally, Elias is critical of the three structural principles suggested by the treatise authors as
elucidating the law on the employment contract: ‘most legal developments can be linked to one or
other of them, but it does not, in my view, add much to the understanding of these developments
to make the connection.’115 Given the pluralism and incommensurability of the law’s internal
values, the degree of abstraction necessary to make these general principles ‘fit’ a messy and
political body of law may have left them empty. Or, at the very least, too empty to be of practical
use to the courts. Obviously, the methodological judgement on the right degree of abstraction is
finely balanced. The judge may take a different view to the doctrinal scholar. It is nevertheless
interesting to note that the structural principles have not yet influenced the doctrinal development
of the law. For example, in the landmark judgment of Uber v Aslam, the Supreme Court endorsed
a ‘purposive’ approach to identifying worker status.116 It justified its approach by reference to
worker-protective purposes in specific employment statutes (including the statutory restrictions
on contracting out of employment rights). It did not resort to the abstract principles set out in The
Contract of Employment treatise.
Doctrinal Rationalization and Textbooks
The challenges to doctrinal coherence presented by ‘potentially highly political legislation’,

identified by Sir Patrick in his review essay, is central to understanding the historical development
of the genre of textbook writing. In ‘Labour law as a vocation’, Hugh Collins traced a distinction
112 Ibid. 884.

113 Ibid. 874.
114 Ibid
115 Ibid. 887.
116 Uber BV and Others v Aslam and Others [2021] UKSC 5.

between ‘two conceptions of labour law’ reflected in two styles of textbook.117 The relevant
standard of evaluation for these distinct approaches was the ‘coherence’ of each conception. For
Collins, the criteria of ‘coherence’ varied depending upon legal subject-matter. He distinguished
‘conceptual’ and ‘normative’ coherence. For private law disciplines such as contract law, coherence
was based in conceptual unity, the rationalization of discrete rules in terms of a small set of general
principles. This conceptual parsimony was unlikely to be fruitful in labour law given its messy
origins in a hotchpotch of statutes, private law rules, public law principles, and social norms
derived from collective bargaining. For ‘contextual’ disciplines such as labour law, coherence
depended upon normative unity. This envisaged law as an instrument for resolving social problems.
In turn, this functional view of law provided criteria of relevance and importance for organizing
legal materials, and a framework for ‘rational reconstruction’ of the legal doctrine so that it better
served its social purpose.
The ‘traditional’ conception of labour law was represented by Lord Wedderburn’s classic work,
The Worker and the Law.118 It provided a systematization of labour law based upon a strong sense
of labour law’s normative ‘vocation’ or purpose, countering the subordination of the worker and
the inequality of bargaining power in individual employment contracts. This was reflected in the
priority it accorded to collective bargaining, trade union and strike laws, and individual rights
relating to dismissal and discrimination. On the other hand, the ‘labour market’ conception of
labour law was represented by Paul Davies’s and Mark Freedland’s Labour Law: Text and Materials.119
This systematized the legal materials around the shifting regulatory goals of governments which
tended to be especially concerned with the economic management of inflation, employment levels,
productivity, and competitiveness. This justified an examination of immigration rules and its
impact on labour markets, and labour market policy measures concerned with youth
unemployment, collective redundancies, and labour market restructuring. For Davies and
Freedland, labour law was a mix of shifting purposes rather than a single normative purpose
imposed on the material by the ethically committed theorist. Hence, in Collins’ terms, there could
be no strong normative unity for the ‘labour market’ conception. Without this normative unity,
however, ‘the subject lapses into incoherence.’120 This is because its criteria of relevance for
selecting and organizing the materials are simply reactive to government policy, which also ‘runs
the risk of permitting the Government to set the agenda for scholarship and to define the terms
of debate.’121
Presented in this way, the choice between a coherent and an incoherent conception of labour law
hardly seems like a difficult choice. We should prefer the coherent approach. As Raz explains,
however, there may be strong reasons to be cautious about coherence-based accounts of the law.
His jurisprudential reservations about coherence dovetail with the more practical concerns of Sir
Patrick. According to Raz, value pluralism may militate against coherence. Coherence can have
117 Collins, n 63.

118 This book appeared in three editions. The third edition was published in 1986: Lord Wedderburn, The Worker and
the Law (Harmondsworth, Penguin, 3rd ed 1986).
119 P L Davies and M R Freedland, Labour Law: Text and Materials (London, Weidenfeld & Nicolson, 2nd edition
1984).
120 Collins, n 63, 484.
121 Collins, n 63, 482.

reductive tendencies where the primary materials themselves are riven by political disagreements
and conflicts. There is significant value pluralism in labour law. It engages a multiplicity of
incommensurable values and concerns: justice, equality, dignity, freedom, non-domination,
efficiency, firm competitiveness, private authority and economic coordination, job creation,
control of inflation. The fates of these values shift depending upon political and economic
circumstances, the elected government, judicial culture, and so forth. There is a danger that
imposing coherence on the law is an attempt ‘to idealize the law out of the concreteness of politics.
The reality of politics leaves the law untidy. Coherence is an attempt to prettify it and minimize
the effect of politics.’122
Labour law may be the most political of legal disciplines as the key site of social and economic
conflict in modern societies. It is reflected in the significant legislative shifts that often occur when
new governments are elected. This degree of instability is not reflected in other areas such as
company law, family law, or contract law. Strong normative unity may easily stray into the realm
of external critique. This involves the projection of the theorist’s external values onto the legal
material, rather than rational reconstruction from the inside. Where the legal material cannot
support the coherence that is being imposed upon it, there is a real risk that the normative scheme
will fail on the dimension of ‘fit’. In this way, the ‘labour market’ conception shows greater
sensitivity to the ‘reality of politics’. This normative diffidence could be a theoretical strength rather
than a weakness.123 It is a particular strength for textbooks, where the onus is on accurate
description and explanation of the law’s structure and content. Statutes are purposive and humanly
created artefacts. The purpose(s) of that creative intelligence must be central to any account of the
law’s form and structure. This also avoids imposing a strong normative view of the discipline when
a textbook is addressed to students who may hold different political values to the author. While
‘neoliberals’ (in scare quotes) may be sparse at academic conferences, we ought to assume that the
students in our seminar rooms reflect the political diversity of the wider political community
Legal coherence must be sensitive to scale and legal context. Localized doctrinal areas are more
amenable to a coherence-based treatment. In the genre of general labour law textbooks, we should
be cautious in expecting too much normative unity. Later textbooks have tended to integrate
economic and worker-protective perspectives as a basis for presenting the material
systematically.124 Increasingly, this worker-protective dimension has been rationalized on the basis
of workers’ fundamental rights: the right to job security, the right to fair and just working
conditions, the right to equality and non-discrimination, the right to collective bargaining, the right
to strike, the right to consultation. In terms of broad systematic structure and the mapping of
labour law, there appears to be a growing alignment between labour law and recent taxonomic
accounts of public law. For example, Varuhas proposes a functional account of public law in terms
of (i) the law regulating the exercise of public power in the public interest; and (ii) the law relating
to the vindication of basic personal rights, including human rights.125 It would be fruitful to think
122 Raz, n 65, 314.

123 This would be supported by Collins’ later reflections on methodology, where he identified the risk of theoretical
‘deafness’ and ‘closure’ to new legal and political developments in the ‘traditional’ conception. See Collins, n 7.
124 See, e.g., ACL Davies’ excellent Perspectives on Labour Law (Cambridge, CUP, 2nd edition 2009) for an exemplar of
this approach.
125 Varuhas, n 52.

about a functional account of labour law in similar terms. The first function would be focused on
the law regulating the abuse of private power in the labour market. This would obviously
encompass the classic concern with inequality in the employment contract. However, it would
extend to the abuse of power between different groups of workers, even the abuse of power by
trade unions against their members, consumers, employers, and the wider public. The ‘public
interest’ would also encompass the various economic priorities of governments in regulating
labour markets. The second function is reflected in the increasing tendency to systematize labour
law textbooks around the worker’s fundamental rights, which are often specified in human rights
instruments such as the ECHR or the EU Charter.
Even where the ordering and naming of topics appears to be consistent over time, the substantive
treatment of them may have shifted radically. An example of this is the ‘contract of employment’.
From the 1960s through to the present day, this is the foundational chapter in any textbook on
labour law. For example, the first edition of Wedderburn’s classic The Worker and the Law devotes
an early substantive chapter to ‘The Contract of Employment’. It is described as the ‘fundamental
institution’ of labour law for the English lawyer.126 The chapter opens by highlighting the
discrepancy between the legal assumption of a free agreement and the social reality of inequality
of bargaining power. Given the maturity and prevalence of collective bargaining as a form of joint
regulation and source of terms and conditions of employment, litigation on the contract was
atrophied.127 The relevant common law was sparse and often pieced together from judgments from
the 18th and 19th centuries. There is a rich and extensive discussion of ‘incorporation’ of terms into
contracts of employment resulting from the normative effect of collective agreements later in the
work.128 The chapter also provides a short discussion of the legal tests for identifying a ‘servant’
working under a contract of service. It discusses the development of legal tests in a range of
different contexts: vicarious liability, workmen’s compensation, national insurance, and protective
employment statutes. Interestingly, Wedderburn cautions against the dangers of transplanting legal
tests from one statutory context to another, and he favours a definition of employment ‘developed
in each area…appropriate to its needs.’129 Given recent developments in the law on employment
status, this ‘purposive’ approach was remarkably prescient.130 In terms of the normative view of
the contract of employment, the tone of the discussion is rather circumspect. The common law of
the contract of employment encodes common law values of social hierarchy and private property,
yet it is also a vital legal conduit for collectively agreed norms. This reticence no doubt reflected
wider views about the role of the judiciary in labour law at this time.
A modern treatise would still identify the contract of employment as fundamental to the legal
structure of the discipline, but its treatment would be radically different. Most obviously, there is
much more case law and statutory regulation to be analysed, reflecting the growing juridification
of work relations and a greater willingness to litigate. I would also suggest that its treatment has
been transformed by the ‘rational reconstruction’ of the structural architecture of labour law
Broadly speaking, labour law is structurally aligned with public law. It has become increasingly
126 K. W. Wedderburn, The Worker and the Law (Harmondsworth, Penguin, 1965) 32.
127 The terminology of ‘atrophy’ is Kahn-Freund’s, n 42.
128 Wedderburn, n 126, 114-122.
129 Ibid. 39.
130 Uber, n 116.

configured around ‘abuse of power’ and vindicating fundamental personal human rights.
Textbooks now explore the worker-protective potential of implied terms in personal employment
contracts, especially mutual trust and confidence, and its role in regulating abuse of power. The
legal identification of the employment contract is also analysed through its public function in
allocating fundamental rights enacted in protective statutes. This ‘purposive’ approach to
employment status has now been affirmed in the English case law, which reinforces the ‘fit’
between the textbook treatments of the doctrine and the case law and statutes being rationalized.
This also highlights the reflexive quality of leading textbooks, and the ongoing dialogue between
textbook writing and judgment writing. The art of good doctrinal writing is to anticipate the next
incremental steps for the courts, based on the existing materials, and to fortify the judges in taking
those steps.
V Doctrinal Scholarship: Current Controversies and Future Prospects
There may be some particular obstacles to the embrace of doctrinal scholarship in labour law. The
first is the concern that doctrinal scholars are too close to the judges. In a recent lecture, Lord
Burrows defended doctrinal scholarship as a collaborative partnership between the courts and legal
academe, with doctrinal scholars supporting judges in the rational development of the law.131
Indeed, his lecture is something of a lament for the disappearance of ‘practical ‘legal scholarship
focused on legal doctrine. According to Burrows, the eclipse of doctrinal scholarship has
impoverished the legal academy. In a similar vein, Varuhas has argued that legal practices are
constituted by the norms and rules of an ‘interpretive community’. The doctrinal scholar must be
a ‘participating member’ of that community. Like the judge, she is an insider participant rather
than an external scientific observer.132
Yet an enduring theme of British labour law has been the distrust of courts and judges, and this is
allied with a critical orientation to the judges and their legal doctrines.133 As already noted, there
has been an acceptance by workers and trade unions that courts and litigation are a legitimate
means of protecting their interests. In blunt terms, there are now many more cases to read and to
understand. Nevertheless, the more fundamental question still stands. In his reflections on legal
education, Kahn-Freund detected a pernicious aspect of English legal culture. This was the
‘contradiction’ between the critical reason demanded by a liberal university education and the fact
that the English judiciary ‘is in this country invested with a prestige and an authority which are, I
think, unique’.134 This was a kind of ‘authority’ that went beyond the positivist insistence that legal
reasons are special norms based in authoritative social sources. It was a personalized judicial
authority that inhibited critical thought, and it was a particular problem in the English common
law and English law faculties at that time.
131 Lord Burrows, ‘Judges and Academics, and the Endless Road to Unattainable Perfection’, The Lionel Cohen
Lecture 2021; and see the interesting response from G. Samuel, ‘What is the Role of a Legal Academic? A Response
to Lord Burrows’ (2022) 3 Amicus Curiae 305.
132 Varuhas, n 2.
133 Bogg, n 48.
134 Kahn-Freund, n 17, 126.

Does this mean that doctrinal scholarship cannot take root in a critical discipline like labour law?
The answer should be evident from the rich body of doctrinal scholarship surveyed in this chapter.
Properly understood, doctrinal scholarship is focused on the technical mastery of a specialized
body of legal doctrines and rules.135 Good doctrinal scholarship is not afraid to expose weaknesses
in legal reasoning. It should be robustly critical of judicial reasoning where that reasoning is
defective morally or legally. There are many examples of this kind of internal critique in doctrinal
scholarship, especially in the genre of case notes. Sometimes, robust criticism of judicial reasoning
has contributed to significant improvements in the law. Indeed, doctrinal scholarship may be
understood as a form of public accountability for courts, scrutinizing judicial reasoning and
exposing it to exacting critical analysis. This is genuinely collaborative because it is underpinned
by norms of academic integrity: academic independence, a commitment to truth, and the
willingness to criticize legal reasoning (and judges) fearlessly and with candour.136 The doctrinal
scholar is a critical friend to the judge and the legislator. This must be based on respect, which has
nothing in common with sycophantism.
A different concern is that the doctrinal scholar must, in Varuhas’ terms, be an insider participant
in the ‘interpretive community’. What if the legal scholar cannot endorse the norms of that
‘interpretive community’ because the immanent legal values are so skewed against the interests of
workers? Does this mean that the critical legal scholar is unable to be a brilliant doctrinal lawyer?
The blend of caustic critique and doctrinal flair in, say, Lord Wedderburn’s or Keith Ewing’s
careers as legal scholars suggests otherwise. The options are not binary, either fully committed
participant or external observer. It is possible for the doctrinal scholar to adopt a perspective on
legal norms that is ‘detached’. She may be like Neil MacCormick’s ‘rebel’, which describes those
‘who know and understand but actively reject the social norms willed by the more dominant groups
in their society.’137 This point of view is not the same as the fully committed participant, such as
the judge, who endorses and applies legal norms as morally binding. It is nevertheless a ‘cognitively
internal’ point of view since those norms are understood hermeneutically rather than from a purely
external perspective. This hermeneutic position allows a deep intellectual understanding of legal
norms, their interrelationship with each other within a normative system, and technical grasp of a
complex body of rules and doctrines. This detached point of view explains how it is possible to
be both a ‘rebel’ and an adept doctrinal scholar. Whether that is achievable depends upon whether
the ‘rebel’ is prepared to do the hard work reading the law reports and thinking carefully about the
judgments, taking the law seriously in its own terms.
Even if a critical doctrinal scholarship is possible, is doctrinal method nevertheless distinctive in a

contextual subject like labour law? For Varuhas, there is an ascending ladder of doctrinal methods
displaying ever greater levels of intellectual sophistication: description; derivation; systematization;
and interpretivism. The ‘interpretive’ method is the highest form of doctrinal scholarship because
it provides a deep theorization of the normative principles that justify the adoption of a taxonomy,
doctrinal categories, and the general mode of organizing the legal materials. It is more sophisticated
135 J. M. Finnis, ‘Natural Law and Legal Reasoning’, in Robert P. George (ed), Natural Law Theory (Oxford, OUP,
1994) 134.
136 On these professional norms, see T. Khaitan, ‘On scholactivism in constitutional studies: Skeptical thoughts’
(2022) 20 International Journal of Constitutional Law 547.

137 MacCormick, n 25, 289.

than ‘systematization’ because this method may not, unlike ‘interpretive’ theory, involve a deep
normative justification of the distinctions and categories used to organize the materials.
I am doubtful that this hierarchical scheme of doctrinal methods can be applied to labour law. The
political aspect of labour law, reflected in the prevalence of statute as a form of law-making, means
that we must be circumspect about coherence. The quest for coherence, based in deep background
principles, is limited by the messy and conflictual legal reality that is being theorized. That is why
I have focused instead on genres of doctrinal writing rather than distinct methods. The real
difference between genres of doctrinal writing is not in terms of distinctiveness of doctrinal
methods. Each genre deploys similar methods and approaches but at different scales. As we move
from the particular, focused on a specific case, to the general, focused on the entire body of labour
law, the legal scholar must be attentive to the strains on coherence. It might be better to recognize
the plurality of immanent purposes in labour law, of how those purposes have changed over time
and vary across discrete legal areas. This limits the possibilities for an overarching interpretive
theory for the entire field such as one sees in general private law scholarship. This flexibility is a
significant virtue of Davidov’s work on the purposes of labour law, which may be understood as
a work of significance in the theory of doctrinal scholarship.138 A looser approach creates
intellectual space for reasonable disagreement in the academy, given the pervasive pluralism and
incommensurability of legal values. It seems to me that there is an entirely respectable intellectual
case to be made for an economically liberal approach to doctrinal labour law, just as there is for a
social democratic approach. The legal academy is in serious trouble if it cannot accommodate this
kind of reasonable pluralism. Apostasy has no place in a university. Our fidelity as scholars is
always to the better argument, and to respect interlocutors as we attempt to work out what the
better argument is.
Finally, what of the different challenge posed by what Khaitan has memorably termed
‘scholactivism’?139 This describes the activity of scholarly engagement where scholarship is
produced in order to bring about changes in the legal order. Khaitan argues persuasively that there are
dangers with scholactivism. It could undermine the rigorous pursuit of knowledge and truth for
its own sake. The tendency to focus on specific social justice problems on a shorter time horizon
could undermine the scholarly virtues of intellectual humility and open-minded reflection. It
prioritises the display of certainty, even where there might be doubt, in pursuit of the quick win.
Scholactivism in doctrinal labour law may be especially alluring because it is a discipline forged in
a concern for human emancipation.
This touches upon the difficult question of how internal legal values might have objective
standing.140 I have suggested that a narrow account of legal reasoning as restricted to the posited
legal norms is unsustainable. Following Raz and Gardner, reasoning ‘according to law’ is fully
connected to moral and empirical reasoning. Judges will often quite properly engage with moral
reasons to reach legal conclusions. Furthermore, morality is not something we opt in or out of,
138 Guy Davidov, A Purposive Approach to Labour Law (Oxford, OUP, 2018).
139 Khaitan, n 136.
140 For a thoughtful exploration of this conundrum reflecting on Davidov’s work on law’s purposes, see Ruth
Dukes, ‘Identifying the Purposes of Labor Law: Discussion of Guy Davidov’s A Purposive Approach to Labour Law’
(2017) 16 Jerusalem Review of Legal Studies 52.

like the rules of chess or baking cakes. It is inescapable, and it is integral to legal reasoning.141 In
this sense, the doctrinal enterprise is (inevitably) morally committed. The duty upon us as doctrinal
scholars is to examine those reasons in a scholarly and objective way. In the end, our fidelity qua
doctrinal scholar is to a true account of justice, law, and the common good, rather than any
sectional interest. Where there is a genuine indeterminacy in the law, legal reasoning directs the
court to develop the law to a just resolution of the dispute. Yet we must always guard against the
manipulation of truth even if it leads us to some uncomfortable places in reaching a justified legal
conclusion. Justice sometimes goes with the employer rather than the worker.
Doctrinal scholarship has an impressive past in labour law, and this is sometimes overlooked in
caricatures of the foundational scholars and texts. But does it have a bright future? In my view,
the future is very bright indeed. The shifting geographies of work, platform and gig work, public
health and employment, algorithmic management, AI, and the environmental crisis, will generate
new questions for doctrinal lawyers. The constantly evolving nature of labour markets is an
inexhaustible source of new regulatory problems that will benefit from doctrinal attention. Indeed,
AI may present even more fundamental challenges for doctrinal scholarship, as the very idea of
human-centred decision-making in the judicial system and legal profession is called into question.
There has also been a tendency to neglect private law perspectives on the employment contract.
This estrangement of private law is deeply rooted, and it reflects the historical origins of labour
law as a form of legal emancipation from contractual reasoning. The fundamental contractual basis
to employment means that this estrangement should be bridged. The law on contract
interpretation and private law remedies, for example, are still under-theorized in labour law.
Labour law would benefit from an engagement with the rich body of work in private law doctrine
and theory on these topics. This scholarship ought to be engaged with private law while also
ensuring that the distinctiveness of the employment contract as an unequal bargain influences
doctrinal development. The employment contract will continue to represent a site of interaction
between public law and private law, and the content of implied terms has been an area where this
interaction has been particularly interesting. The national influence of human rights means that
doctrinal scholars must understand the multi-level interaction between legal norms derived from
international law, global law, and transnational law. The EU and the Council of Europe has forced
European doctrinal scholars to engage with these intellectual challenges in developing doctrinal
frameworks even within the confines of the nation state. Understanding the legal challenges and
opportunities of developing an integrated body of public law and private law norms is another
area ripe for sustained doctrinal attention.142
The intellectual integrity of the legal academy depends upon taking doctrinal law seriously in its
own terms, to avoid a future where (in John Gardner’s opening words) ‘first-rate academic law is
marginalized in favour of often second-rate interdisciplinarity.’ The open nature of legal reasoning
means that this must be based upon a pluralism of legal methods in the academy, including critical
approaches, law and technology, feminist perspectives, socio-legal and empirical methods, law and
economics, and the philosophy of law. In this way, the tensions between ‘disciplinarity’ and
141John Gardner, ‘Nearly Natural Law’, in John Gardner, Law as a Leap of Faith (Oxford, OUP, 2012) chapter 6.
142See Joe Atkinson, ‘Implied Terms and Human Rights in the Contract of Employment’ (2019) 48 Industrial Law
Journal 515.

‘interdisciplinarity’ have always been phony. Given the scale of challenges ahead for law-makers in
addressing the most profound social and economic challenges, the need for scholarly
collaboration, intellectual integrity, and fearless dedication to truth, has never been more urgent.

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DOCTRINAL METHOD IN LABOUR LAW: POTENTIAL, PROBLEMS,

Alan Bogg, Professor of Labour Law, University of Bristol

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II Doctrinal method in historical perspective

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not regard law ‘as a fit medium of liberal education’.

(2008) 35 Journal of Law and Society 341.

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Kahn-Freund as doctrinal scholar: introduction to the method of ‘rational reconstruction’

17 O. Kahn-Freund, ‘Reflections on Legal Education’ (1966) 29 Modern Law Review 121.

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This retrieval of Kahn-Freund as a doctrinal scholar engaged in ‘rational reconstruction’ may be

Kahn-Freund as doctrinal scholar: (i) collective laissez-faire; (ii) the contract of

Great Britain (Oxford, Blackwell, 1954) 42.

Employment (Cheltenham, Elgar, 2019) 180.

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The second example of ‘rational reconstruction’ is Kahn-Freund’s analysis of the contract of

Studies in Industrial Relations 1.

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41 (1977) 93 Law Quarterly Review 508.

the Labour Market (Oxford, OUP, 2005).

Legal Studies 335.

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Obstacles to doctrinal scholarship in historical perspective

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(eds), The Autonomy of Labour Law (Oxford, Hart, 2015) chapter 9.

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III The Nature of Legal Reasoning and Doctrinal Scholarship

A dualistic perspective on legal reasoning: deductive and teleological

Law Quarterly Review 232.

Stevens & Sons, 1978) 275.

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A Response to Professor Wedderburn’ (1988) 17 Industrial Law Journal 11.

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Some examples of ‘dualistic’ legal reasoning in the courts

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IV Genres of Doctrinal Scholarship

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Doctrinal rationalization of cases

Even in sympathetic accounts of doctrinal scholarship, there is a tendency to overlook the

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Doctrinal rationalization of discrete parts of labour law

(i) Rational reconstruction of the law on dismissal

92 Snook v London and West Riding Investments Ltd [1967] 2 QB 786, CA

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95 H. Collins, Justice in Dismissal (Oxford, OUP, 1992)

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(ii) Rational reconstruction of the law of the employment contract

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101 Ibid. chapters 1 and 2.

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107 Ibid. 24-25.

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Doctrinal Rationalization and Textbooks