Doctrinal method in labour law in common law systems: potential, problems, prospects

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 rationalizing 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 develops two arguments. The first argument rejects the position that doctrinal scholarship must be restricted to consideration of posited legal norms. Legal reasoning often depends upon external non-legal reasons, and this means that doctrinal scholarship must be similarly open to other relevant disciplines. The second argument questions whether it is useful to think in terms of a hierarchy of doctrinal methods. We would do better to recognise that there are different genres of doctrinal writing, and the best forms within each genre display elements of ‘rational reconstruction’