Renorming Labour Law: Can We Escape Labour Law's Recurring Regulatory Dilemmas?

Abstract

Historically, protective labour law pushed back against capitalist labour markets by facilitating workers’ collective action and setting minimum employment standards based on social norms. Although the possibilities, limits and desirability of such a project were viewed differently in classical, Marxist and pluralist political economy, each perspective understood that the pursuit of protective labour law would produce recurring regulatory dilemmas requiring trade-offs between efficiency, equity and voice and/or between workers’ and employers’ interests. Recently, some scholars have argued that labour law needs to be renormed in ways that are market constituting rather than market constraining, and that this change would avoid regulatory dilemmas. This article reviews the concept of regulatory dilemmas as formulated in the three major traditions of labour law scholarship, critically assesses recent work by Deakin and Wilkinson and by Hyde that proposes to renorm labour law and overcome regulatory dilemmas, and proposes an alternative approach to understanding regulatory dilemmas based on the work of Wright.