Legal theory and industrial conflict

Abstract

The subject of this thesis is the role played by the law in a major New Zealand industrial dispute. The object, however, is to locate a theory of law within an explicit theory of society. The legal theories which currently dominate the jurisprudential field have been developed from a set of epistemological assumptions which initially legitimised the abstraction of law from its social context according to a developing division of academic labour. Subsequently there have been attempts to add a social dimension to legal theory but always according to the dictates of law as the prime category and as, therefore, the principle of selection of the relevant "social facts". The law itself, however, makes certain assumptions - such as those concerning the abstract-formal equality of those subject to it - which provide it with an ideological dimension. When, therefore, the law is used as the principle of selection of the data intended to illustrate its social function the theoretical social world constructed is inadequate to the task of accounting for social reality - it is generally characterised by the same ideological assumptions as those implicit in the law. This result can be avoided, it is contended, only by way of commencing with social theory instead of with law, this allowing for the development of social theory which can account for the law's historical development, its imperative content, and for its ideological dimension. Accordingly, in PART ONE the philosophical underpinnings of the dominant theories of law are examined following which the theories themselves are considered. The attempts by analytical jurisprudence to purge the study of law of all social content are examined and the recognition of the impossibility of this task - the thrust of Scandinavian Realism - detailed. Criticisms are then offered of the theories - ranging from those of the historical schools to those of American Realism - which have sought to establish the "social dimension of law". In PART TWO there is provided an explicit social theory and a theory of law in society suggested by this social theory. The ability of this approach to explain the historical development of selected aspects of law - the law of contract, criminal law, and early "industrial" law - is then illustrated. PART THREE details the development of industrial law in New Zealand in accordance with the perspectives developed in PART TWO. These perspectives are then concretised by an examination of the role played by the law in a major New Zealand industrial dispute. This examination confirms the proposition implicit in PART TWO that the law cannot be reified beyond the patterns of power and domination implicit in any determinate social formation.