imprinted upon it.This approach, which was influential in the 19th century, through the writings of legal anthropologists such as Henry Maine still dominates many current theories of labour law. One example is the claim that there is a universal trend in democratic industrial societies towards “juridification”.26 Another illustration of this deterministic opinion is the much-criticised convergence thesis that the “logic of industrialism” - i. e. the structural requirements for industrialisation or for an efficient labour market - necessarily involves the expansion of government.27 Still another is the thesis that the “nature of the firm” demands the subordination of the employee to the employer: Hepple expressly rejects such a purely functional approach,which treats legal history as a series of evolutionary and inevitable stages in response to the demands of a changing working life. He suggests an alternative view, namely that the development of a legal system, and in particular labour law, is the product of a variety of historical factors which are neither “necessary” nor “natural”. Capitalist industrialisation opened up a number of options and the choices made were not inevitable solutions to the social problems. Modern labour law should be seen as the result of the struggle between different social groups, and competing ideologies and beliefs; the result is what they can force or persuade other groups to let them have. “The crucial element in the making of labour law is power”. In every system of domination, the rulers have to persuade the ruled not only that compliance is necessary in order to avoid unpleasant consequences but also that compliance is right. In an c o n t i n u i t y a n d c o n t r ac t 27 “In other words, the right of direction and the employee’s duty of obedience are natural components of the market economy, since they increase the competitiveness of the firms.”28 26 Simitis 1984. 27 Hepple 1986a, pp. 1-4. 28 “Arbetsledningsrätten och den anställdes lydnadsplikt är med andra ord naturliga inslag i marknadsekonomin, eftersom de ökar företagens konkurrenskraft.” Nycander 2002, p. 80. See also Coase 1937 and Malmberg, 1997 pp. 41-44, 49, 245-246.
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