Re-Systematising Labour Law: Beyond Traditional Systems Theory and Reflexive Law?

Reflexive law has an enduring place in the theory of labour law, having featured prominently in the work of leading labour law scholars.[1] Grounded in systems theory, reflexive law offers a key means of moving beyond command and control regulation, to consider how law interacts with other social systems. Systems theory, as developed by Niklas Luhmann, argues that the world is composed of social subsystems, each of which is autopoietically closed but cognitively open. Law, in this view, is one social sub-system, with its own system of self-referential and self-constituting communication. One system cannot influence, control, or determine other systems: instead, systems might occasionally ‘irritate’ each other. Law therefore cannot control the economy, labour market or organisations: it can only irritate other social systems to effect change. For Luhmann, then, the focus is on self-referential communications within systems, rather than any input-output relation between them.