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A Social Ontology of the Wage I A Social Ontology of the Wage i A Social Ontology of the Wage Zoe Louise Adams Pembroke College Faculty of Law University of Cambridge Supervisor: Professor Simon Deakin This dissertation is submitted for the degree of Doctor of Philosophy Submission Date: July 2018 i A Social Ontology of the Wage Zoe Adams Summary This thesis draws on the theory and method of social ontology to explore why labour law struggles to provide for wage security and clarity of employment status today. It starts by exploring at a conceptual level the relationship between law and capitalism, before moving on to engage more specifically with the concept of the wage, situating the analysis in a theory of the wage’s socio-economic function. The thesis understands the ‘wage’ as, initially, the market price of the commodity, ‘labour power’, which is exchanged in the labour market. As with any other ‘price’, the wage func- tions to coordinate decision making in the market. At the same time, however, the wage is also the cost of reproducing that commodity, a process which is not confined to the market but takes place in society more generally: this is the function of social reproduction. These two functions are not only conceptually and materially distinct; they are frequently in con- flict. The price the market assigns to the labour commodity is not always, and not necessarily, that which is required to cover its costs of (re)production. The thesis shows that these functions of the wage find their expression in the various con- cepts the legal system uses to describe the payment made by employers to their workers. For example, the legal concept of the ‘wage’ corresponds closely to the economic idea of the wage as price, and the concept of ‘remuneration’ to the wage as the cost of social reproduc- tion, shifting some of the social costs of employment onto the employer. How these concep- tual tools are deployed, however, and thus how effectively these functions are performed in practice, depends on law’s own view of its ontological status: that is, the implicit position that the legal system takes on what constitutes ‘social reality’ beyond the text of a particular case or statute, and thus its view of whether, and to what extent, legal concepts can shape, as well as respond, to it. The thesis shows that whether the legal system sees its concepts playing an active role in constituting social and economic relations, or whether it sees them as passively reacting to the ‘demands’ of a ‘pre-constituted’ economic system makes a difference to the effectiveness of law in practice. Understanding law’s implicit ontology in this sense helps us to see why labour law struggles to provide for wage security and clarity of status. Thinking about law’s relationship with social reality can thus make an important contribution to our understanding of the problems of low pay and unclear employment status today. iii Preface This dissertation is the result of my own work and includes nothing which is the outcome of work done in collaboration except as declared in this Preface and specified in the text. It is not substantially the same as any that I have submitted, or, is being concurrently submit- ted for a degree or diploma or other qualification at the University of Cambridge or any other University or similar institution except as declared in the Preface and specified in the text. I further state that no substantial part of my dissertation has already been submitted, or, is be- ing concurrently submitted for any such degree, diploma or other qualification at the Univer- sity of Cambridge or any other University or similar institution except as declared in the Preface and specified in the text. This thesis, including footnotes, does not exceed the permitted length: 79,771. The thesis does not exceed the permitted total (including footnotes, bibliography, and preliminary mat- ter): 98,813. v Acknowledgements This thesis would not have been possible without the financial support of the Arts and Hu- manities Research Council. I am grateful for the ongoing support of my supervisor, Simon Deakin, with whom it has been a pleasure to work these past few years. It is to him I owe my passion for the law, and labour law, as well as the many wonderful opportunities I have had throughout the course of the PhD. He continues to be a source of inspiration for me, both as an academic, and as a human being. I would also like to thank Nicholas McBride, whose unwavering support since I began as an undergraduate in 2010 has been invaluable. Finally, I would like to thank my parents for their continued love and support, and my friend Adam, without whose support I would not be here today. vii Table of Contents SUMMARY ............................................................................................................................................ I PREFACE ........................................................................................................................................... III ACKNOWLEDGEMENTS ................................................................................................................. V TABLE OF CONTENTS .................................................................................................................. VII INTRODUCTION ................................................................................................................................. 1 1. PLAN OF THE THESIS ........................................................................................................................ 1 2. WHAT IS SOCIAL ONTOLOGY AND WHY IS IT RELEVANT TO LAW? ................................................. 2 2.1 Why Engage with Social Ontology? .......................................................................................... 7 3. METHOD AND OUTLINE ................................................................................................................. 11 3.1 Philosophical Social Ontology: A Theory of the Legal Form ................................................. 12 3.2 Scientific Social Ontology: A Genealogy of the Wage ............................................................. 16 3.2.1 The Concept of the ‘Wage’ .................................................................................................... 17 4. OUTLINE AND CONTRIBUTION ....................................................................................................... 27 5. CLARIFYING THE SCOPE OF THE THESIS ........................................................................................ 30 ............................................................................................................................................................... 36 CHAPTER ONE: LAW AND SOCIAL ONTOLOGY .................................................................... 37 1. INTRODUCTION .............................................................................................................................. 37 1.2 LEGAL FORM ................................................................................................................................ 38 1.2.1 Alain Supiot and François Ewald: Law’s Cognitive Function ............................................. 38 1.2.2 Niklas Luhmann: Law as System .......................................................................................... 41 1.2.3 Evgeny Pashukanis: The Legal Form ................................................................................... 46 1.3 LEGAL FORM AND GENEALOGICAL METHOD: A NEW SYNTHESIS .............................................. 51 CHAPTER TWO: ANALYTICAL FRAMEWORK ....................................................................... 59 2.1 INTRODUCTION ............................................................................................................................ 59 2.2 LEGAL ONTOLOGIES AND THE WAGE ........................................................................................... 59 2.3 CLARIFYING TERMS ..................................................................................................................... 65 CHAPTER THREE: LABOUR LAW AND THE EMERGENCE OF THE WAGE .................... 73 3. INTRODUCTION .............................................................................................................................. 73 3.1 MEDIEVAL ENGLAND AND THE EMERGENCE OF WAGE-LABOUR ................................................ 74 3.1.1 Legal context ......................................................................................................................... 74 3.1.2 Socio-Historical Context ....................................................................................................... 75 3.1.3 The Statute of Labourers and the Common Law .................................................................. 78 3.2. THE EVOLUTION AND DECLINE OF TENURE AND SUBSISTENCE IN THE TUDOR PERIOD ............ 84 3.2.1 Socio-Historical Context ....................................................................................................... 84 3.2.2 Statute of Artificers and the Law of Settlement ............................................................... 85 3.3 EIGHTEENTH CENTURY ENGLAND AND THE EMERGENCE OF THE MODERN LABOUR MARKET . 91 3.3.1 Socio-Historical Context ....................................................................................................... 91 3.3.2 The Decline of the Elizabethan Framework ......................................................................... 92
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