The legal construction of management: a neo-realist framing and genealogical case study

ABSTRACT

The practice of corporate management is not wholly prior to the legal interventions which have sought to shape it since the first emergence of modern industry. A genealogical case study of mine safety legislation discloses the coevolutionary dynamic through which corporate law and practice have been mutually adjusted over time. Revealing the juridical roots of management highlights the importance of law as a normative grounding for the economy. It also validates a neo-realist conception of corporate law, which understands law to be part of the social reality which it constructs. Viewing law this way clarifies the issues at stake in notions of corporate responsibility, both in history, when the vertically integrated business corporation was in the process of being formed, and under current conditions, when it is fragmenting.

KEYWORDS:

• Legal ontology
• genealogy
• corporation
• health and safety
• mining

1. Introduction

The question of how corporate law conceptualises the business firm has given rise to an increasingly active research field, with contributions from different disciplines and paradigms contending for influence. Jean-Philippe Robé has influentially suggested reserving the use of the term ‘corporation’ or ‘company’ to the legal form, and ‘firm’ or ‘enterprise’ to the economic activity or entity to which it refers.¹ This is an important observation and undoubtedly useful in highlighting the differences between legal and economic terminology. It does however prompt a number of questions. If the law and the economy are seen as separate in this sense, how do they relate to one another? Does law constitute economic activity or simply reflect it? When the law uses the formal language of juridical concepts to achieve its ends, is it doing so in order to maintain its own internal modes of operation (‘self-organisation’), or with a view to extending its influence on society (‘external projection’)? What might seem like very abstract questions have practical implications for how corporate law (and law in general) is researched, and also for what can be expected from corporate law reform.

This paper will argue that progress on these issues can be made by exploring the scope for synthesis between approaches which are more often thought of as divergent, namely, ‘realist’ and ‘constructivist’ approaches to the social scientific study of law. Adapting a systems-theoretical perspective, it will argue for a ‘neo-realist’ understanding which borrows elements from each (section 2). It will relatedly argue for the usefulness of a genealogical method, involving the techniques of ‘conceptual reconstruction’ and ‘legal philology’, for understanding legal phenomena in their social context (section 3). To concretise the argument, it will then present a case study, which focuses on the legal understanding of the practice of ‘management’ and its implications for corporate responsibility (section 4). Section 5 adds a concluding assessment.

2. Theory: reconciling ‘realism’ and ‘constructivism’

For present purposes, a ‘realist’ understanding of law will be understood as one which sees law as a societal phenomenon, that is, as existing on the same level of reality as other social existents, such as firms, markets and states. More precisely, law is understood as a mode of regulation or governance, and these other phenomena as the entities, structures or objects which the law regulates or governs. To be more precise still, this is how law sees itself; in other words, to use the conceptual framework of systems theory, this is how the internal discourse or ‘self-understanding’ of law expresses its own role and its positioning with respect to other societal phenomena.²

To perform this role, the legal system will seek to construct an understanding of these other social referents. To do this, legal discourse translates signals (or ‘noise’) from beyond its boundary³ into terms that can be internally understood: legal concepts.⁴ The view of the world so constructed is not uniquely ‘correct’ or ‘true’, since other social sub-systems (which may include the economy, morality, politics, technology, religion, art, and so on) have their own internal ‘codes’, which will be engaged in translating the signals they receive from law and from each other.⁵ But equally, law is not in any sense less ‘real’ than the economy or politics.⁶

It does not follow from the existence of multiple ways of conceiving or constructing any given phenomenon, or multiple ‘epistemologies’, that there is no single reality to which they relate. Seeking to avoid what Roy Bhaskar calls the ‘epistemic fallacy’,⁷ a realist account of law is one which assumes that there is such a reality and that it can be meaningfully, or ‘scientifically’, studied.

It may be objected that all systems of representation, including those of science, operate in a dynamic relationship to the objects they represent; they are ‘reflexive’, in the sense that in describing those objects, they also serve to constitute them.⁸ This reflexivity may be thought of as fatal to any attempt to ascribe invariance to the objects being described.

However, the objection from ‘reflexivity’ goes too far. The issue is not whether the categories and processes of the social sciences have no impact on society itself. They surely do, although subject to lags and contingencies of various kinds, which make any such influence indirect and its causal impact difficult to model and predict.⁹ The issue, rather, is whether it is possible, with the help of relevant theory and method, to achieve sufficient distance from the object of study as to render it invariant to our examination; or at least sufficiently invariant, in time and space, to make that examination meaningful, in the sense of producing new knowledge. Science, including social science, may well be one discourse among many, but it operates in an iterative relationship with its own context, the world of ‘facts’,¹⁰ and is responsive to the signals it receives from its own observations of that world.¹¹ This is as true with respect to the social scientific study of law as it is to the study of any other societal phenomenon: we can use theory and method to hold ‘law’ sufficiently invariant to our modes of inquiry as to enable meaningful observations about law, in its social setting, to be made.

This ‘society’ that we are studying, with ‘law’ as one of its components, is ‘real’ but ‘constructed’ at one and the same time. Social reality contains a number of material-cognitive sub-systems, each of which is operationally closed (‘autopoietic’) but cognitively open (‘evolved’).¹² Because systems are operationally closed, their internal modes of operation are mutually distinct (for example, the language and mode of operation of law is not that of the economy or politics). Equally, because sub-systems are cognitively open, they influence each other through a process of co-evolution, which is dynamic and open.¹³ There is no need to assume a priori that this evolution is incremental or punctuated, it could be either.¹⁴ There could also be, and in fact are likely to be, lags in any mutual adjustment of systems.

If social reality were entirely static, we could perhaps confine our attention to each of the sub-systems in turn, studying them in their mutual isolation. We would then have a series of accounts of different knowledge systems: social science as epistemology. There would be no need to posit a further reality, and so no need for a theory of reality, or ‘ontology’. This is the position widely associated with so-called constructivist approaches which draw inspiration from Luhmann,¹⁵ and it is indeed possible to find statements by Luhmann himself rejecting any ‘ontology’.¹⁶

But whether or not Luhmann himself advocated the rejection of ontology as a relevant theoretical category should matter less to us than developing a tractable theoretical framework for the task in hand, which is to understand legal discourse in its economic context. For this purpose, it is not possible to confine our attention to each social sub-system, viewed in isolation from the rest. On the contrary, it will be necessary to consider the relationships between them; in this case, to examine the coevolution of legal texts with certain social and economic phenomena. To study sub-systems not in isolation from each other but as inter-related, is to assume that society does not consist only of the different sub-systems. Since society itself is a system, it is greater than the sum of its parts. Society is an emergent, holistic, complex and adaptive system, whose future is open.

It follows from this understanding of social reality, that research in the social sciences can progress by looking at the interaction between sub-systems over time. It is in historical time that we can begin to see how they relate to one another, and how, through their interaction, the reality we call society is continuously being made and remade.

It is also relevant to note in this regard that each system’s self-reference or ‘autopoiesis’ is an historical fact, and a process rather than an event. At some point, as a result of the structural differentiation associated with modernisation,¹⁷ law separated from religion, the economy from politics, and so on. This point should be borne in mind when considering what the different sub-systems have in common: they may be closed at the level of their mode of operations, but these modes will contain shared elements which reflect their common origins.¹⁸

3. Methodology: genealogies of law

The theoretical framing just outlined suggests a particular method. This is in general terms historical, but more precisely genealogical: it is concerned with identifying origins, mutations and transformations.¹⁹

In the context of legal research, two particular techniques, which are aspects of the genealogical method, are relevant. The first may be called ‘legal philology’. This means looking at mutations in legal texts: how texts are modified over time, how one text leads on to or gives way to another, to what extent form follows function and vice versa, and so on. This is an internal-facing analysis in the sense that it focuses on legal materials in the form of the texts of statutes, judgments, and similar sources. Although internal-facing in the sense of focusing on legal doctrine, this analysis is not a doctrinal exercise, aimed at elucidating the current meaning of a legal text; instead, legal doctrine is treated as an object to be studied using a meta-interpretive approach.

The second may be termed ‘conceptual reconstruction’. This implies reconstructing the evolutionary path of a legal concept not just in terms of its relationship to historically antecedent concepts, but also by reference to the historical environments in which it first emerged and then developed. This looks outward, beyond the legal text, to sources of data on the economic and political systems in the context of which legal changes occur.

Putting the two techniques together can help us to see where the legal concepts currently in use in the law have come from, and thereby to understand their potential as devices, and also their limits, in the present day. In this process of uncovering what has been concealed by the passage of time, we are engaging in a kind of unearthing or excavating; a legal archaeology. The exercise is not of solely antiquarian interest. By reconstructing the past, we can hope to better understand the present, and in particular to see that the current state of affairs may not have been preordained, but was the result of accidental conjunctions or, alternatively, forks in the road, which cannot be easily reversed.²⁰ Legal evolution is thereby understood to contain time-irreversible or ‘non-ergodic’ elements.

The point can be illustrated with reference to studies of the evolution of the juridical term ‘employee’. In modern English law this is a foundational concept for describing categories of work relationship which fall within the protective remit of certain labour law statutes. It is reflected in the idea of a ‘binary divide’ between ‘employees’ and the ‘self-employed’,²¹ with the former, on the whole, being within the coverage of employment protection legislation (laws governing dismissal and related aspects of the employment contract) and the latter not. The binary divide appears to be one that modern social legislation has borrowed from the common law, in the sense of being grounded in the distinction between ‘contracts of service’ or ‘employment’, on the one hand, and ‘contracts for services’ on the other. The common law origins of the distinction, and its root in contractual categories derived from private law, together suggest that it predates the legislation in which it is currently embedded. The distinction seems functional, perhaps obvious and even inevitable in the way it partitions the labour force into two clearly identifiable groups.

A ‘philological’ analysis, comparing statutory texts at different points in time, makes it possible to identify junctures at which mutations in legal form took place, and thereby to locate the antecedents of the modern ‘employee’ concept somewhat more precisely. The current statutory definition of the ‘employee’ in section 230 of the Employment Rights Act 1996 is derived more or less unchanged from the Contracts of Employment Act 1963. This is the first labour law statute to refer to the ‘employee’; prior statutes referred to the ‘servant’ or ‘workman’.²² The 1963 Act defines an employee as, inter alia, a person employed via a ‘contract of service’. At this point, ‘employment’ and ‘service’ seem to mean the same thing.

However, tracing the term ‘servant’ back to its use in early twentieth century and then to nineteenth century legislation shows that it originally referred to a manual worker in industry or agriculture, a category defined in opposition to the ‘employee’, a category which was set aside for professional or managerial occupations.²³ Moreover, the significance of this distinction lay in its implications for the operation of the disciplinary power of the courts to imprison workers for certain breaches of contract, such as wilful disobedience or quitting without cause: ‘servants’ were subject to this power, but ‘employees’ were not.²⁴

A number of conclusions can be drawn from this analysis. One is that the modern term ‘employee’, its contractual connotations notwithstanding, has still embedded within it the older, pre-modern ‘servant’, denoting a particular status, one with connotations of subordination and control. It also suggests that the ‘binary divide’ between employee and self-employed is not so deeply rooted in past practice as might be supposed. It reflects an understanding of the division of risk implied in the employment relationship, which can be dated to the middle decades of the twentieth century, and a conception of industrial citizenship which was coterminous with the emergence of the modern welfare state. Mid-Victorian classifications had restrictive or disciplinary purposes in mind when partitioning the labour force.

The method of ‘conceptual reconstruction’ aims to understand the process of legal mutation in its social and economic context. This means looking beyond the legal text to consider evidence from a range of sources which throw light on how work was carried out in practice, in farms, factories and offices, and across particular trades and occupations. Reported judgments in legal cases provide some insight here, but being a sub-sample of work-related disputes which have been selected for their significance as legal precedents, they are not representative of working experiences in general.²⁵ Evidence drawn from contemporary archival sources may be a better guide to what was happening on the ground, and the relevant secondary literature in fields such as labour and business history can be consulted.

When this is done, some further aspects of the evolution of legal terms are clarified. In particular, it becomes clear that decisions about the classification of work relations from the Victorian period were not taking place against the backdrop of the integrated business enterprise, because that type of business firm was unusual before the early decades of the twentieth century.²⁶ In Victorian Britain, work relations were rarely constituted in the form of a direct contractual nexus between a worker and an employer; more often, they were part of a web of relationships involving intermediaries whose status was that of independent contractor rather than supervisor or manager.²⁷ Rather than presupposing or discovering the existence of a direct contractual nexus, the law more often imposed it with a view to subjecting a ‘servant’ to the disciplinary powers of a ‘master’. As criminal law sanctions against workers were withdrawn in stages over the course of the final third of the nineteenth century and the social legislation of the early welfare state took their place, the same classificatory logic was used to determine workers’ rights to workmen’s compensation and social insurance.²⁸

Legal philology and conceptual reconstruction are methods which clarify the genealogy of the ‘employee’ concept, revealing the concept to be more modern and recent than might have been supposed. It is an invention of the period, in the middle decades of the twentieth century, when the ‘universal’ or comprehensive welfare state, on the one hand, and the integrated business firm, on the other, were at their apogee. But it was not simply a response to these external phenomena; it was a construction, superimposed on the practice of working lives, which conferred on workers of all classes and occupations a protected status, a version of industrial citizenship. The erosion of the welfare state, along with the fissuring of the firm, puts the operation of the employment model in question, but its adaptation to new circumstances cannot be ruled out; similar mutations have occurred in the past.²⁹

4. Case study: the legal construction of ‘management’

4.1. In search of the ‘manager’ in corporate law

The methods just outlined will now be applied in the context of a new case study. This is concerned with the way the law constructs the category ‘management’.

In working life it is commonplace to refer to ‘management’ as a function, a role, and/or a person or group of persons occupying that role, of the enterprise or firm. ‘Management’ is a field of scholarship and in some senses a distinct academic discipline within the broader framework of the human and social sciences, even if now subsumed into ‘business schools’ within universities and other higher education institutions. There seems little reason to doubt that ‘management’ then is a societal phenomenon of some significance. However, there is no ‘law of management’, in the sense of a legal sub-field devoted to its study. It is also surprisingly difficult to locate the category ‘management’ in the field of law, ‘corporate’ or ‘company law’, which, by its own self-description, is where we might expect to find it.³⁰

If we look for the term ‘management’ in the model articles of association of the public company, we can find it only once:

Directors’ general authority

3. Subject to the articles, the directors are responsible for the management of the company’s business, for which purpose they may exercise all the powers of the company.³¹

The term ‘manager’ does not appear at all in the model articles. This near-invisibility of management as a role or function is consistent with the approach of the parent Act, the Companies Act 2006, which for the most part focuses on the obligations of ‘directors’, a category of fiduciaries with respect to the company who may or may not have managerial roles. A ‘director’ may be found personally liable for breach of the duty of care owed to the company under section 174 of the Act.³² An executive director may thereby become liable for their own mismanagement. Otherwise, a director may satisfy their obligations under the duty of care by taking sufficient steps to delegate the responsibility for managing the company’s business.³³ Notably, section 174 does not confer liability for breach of the duty of care on officers of the company, including managers, who are not also directors, or deemed to be acting as such.

That boards of listed companies generally delegate rather than manage is recognised in the provisions of the UK Corporate Governance Code on internal control. These specify that the audit committee should review, inter alia, the company’s ‘internal control and risk management systems’.³⁴ Elsewhere in the Corporate Governance Code the term ‘management’ appears sporadically, in the context of various prescriptions directed at boards: where the board is not satisfied that ‘policies, practices or behaviour throughout the business are aligned with the company’s purpose, values and strategy’, to ‘seek assurance that management has taken corrective action’;³⁵ to record any concerns about the ‘management of the company’ in minutes of board meetings;³⁶ in the case of non-executive directors, to ‘hold management to account’;³⁷ and again only in the case of non-executive directors, ‘to scrutinise and hold to account the performance of management … against agreed performance objectives’.³⁸ The term ‘senior management’, referring to ‘the executive committee or the first layer of management below board level, including the company secretary’,³⁹ also appears at various points in the Code, for example in relation to succession planning,⁴⁰ gender balance,⁴¹ and executive remuneration.⁴² It is telling that the Code is not a code about how to manage; whatever exactly the Code means by ‘governance’ (the term is not defined), it envisages it as being as separate from, and in some sense prior and superior to, ‘management’, as a corporate role or function.

Section 1121 of the 2006 Act defines the term ‘officer’ to include ‘any director, manager or secretary of the company’. This definition serves to identify those individuals who may commit one or more of a number of criminal offences set out under the 2006 Act, but it does not go into detail on what a ‘manager’ is or does. In a similar way to section 1121, certain health and safety statutes impose criminal liability on ‘managers’ and other officers. This generally occurs where an offence committed by the corporate employer is committed with the consent or knowledge of that officer, or as a result of their negligence, as in the case of section 37 of the Health and Safety at Work Act 1974:

37 Offences by bodies corporate

(1) Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Here, the function of management and the category ‘manager’, as distinct from ‘director’, are more visible. Again, however, exactly what managers do or should do is not spelled out. The term ‘manager’ is not defined in the 1974 Act.

4.2. The legal structure of ‘management’ in the Mines and Quarries Act 1954

Much more detailed in its identification of managerial roles is the (now repealed) Part II of the Mines and Quarries Act 1954 (‘MQA’), which is headed ‘Management and Control of Mines’. Relevant roles here include ‘owner’; ‘manager’; ‘undermanager’; ‘surveyor’; ‘deputy’; ‘official’; ‘engineer’; ‘technician’; and ‘other competent persons’. These terms are used with the aim of putting in place a managerial system which, in the course of ensuring the working of the mine, must also ensure its safe operation.

The term ‘owner’ in the 1954 Act means ‘in relation to a mine or quarry, the person for the time being entitled to work it’.⁴³ The ‘owner’ is under a duty to ensure that the mine is ‘managed and worked’ in accordance with the provisions of the Act.⁴⁴

A ‘manager’ is one who, by virtue of their appointment, ‘shall have the management and control of the mine’.⁴⁵ The manager has the duty ‘of securing the discharge by all others of obligations imposed on them with respect to the mine by or by virtue of’ the Act.⁴⁶ There cannot be more than one manager at any given time: a ‘sole’ manager must be appointed.⁴⁷

The owner may only give instructions to the manager if those instructions are in writing or initially given orally and then confirmed in writing on request.⁴⁸ Neither the owner nor anyone acting on the owner’s behalf can give instructions to anyone ‘employed in’ the mine and who is responsible to the manager, except with the manager’s consent.⁴⁹ Ownership and control are formally separated.

An ‘undermanager’ of a mine has a duty, ‘to the extent of his jurisdiction thereover, to supervise all operations carried on thereat and, to the best of his ability, to execute and enforce with respect to the mine the provisions of this Act, orders made thereunder and regulations’.⁵⁰ No mine can be worked unless ‘daily personal supervision thereover’ is exercised by the manager and undermanager(s).⁵¹

The owner must appoint a ‘surveyor’⁵² and ‘deputies’.⁵³ The latter are officials charged with specific duties of health and safety-related inspection, to which end they ‘shall have the immediate charge of the workmen employed at the mine and of the operations carried on by them’.⁵⁴

The manager must in addition appoint:

such number of officials, engineers and technicians and other competent persons (if any) as is sufficient (taking into account activities in that behalf which are undertaken in person by the manager of the mine, by any under-manager thereof and by any persons appointed as aforesaid) to secure—

1. the adequate inspection of the mine and the equipment thereof;

2. the thorough supervision of all operations at the mine; and

3. the carrying on of the undertaking of the mine in conformity with the provisions of this Act, orders made thereunder and regulations.⁵⁵

Given the usage of the terms ‘work [the mine]’⁵⁶‘carry on [the undertaking]’,⁵⁷ ‘manage’,⁵⁸ ‘control’,⁵⁹ ‘instruct’,⁶⁰ ‘have immediate charge of’,⁶¹ ‘supervise’,⁶² and, conversely, ‘[be] responsible to’,⁶³ it can be inferred that the Act envisions the managerial structure of the mine as a hierarchy. This hierarchy is necessary in order to ensure the safety of the mine’s operations, with specific role-holders, up to an including the ‘manager’, having specified duties.

4.3. The legal genealogy of colliery management

Thus the law ‘sees’ or ‘cognises’ a feature of the firm, management, and describes its characteristics, including hierarchy. Is the law here observing or projecting? Reflecting or constituting? Surely it is both. In order for a legal rule to be applied to a given referent, the law must first cognise that referent. The material effect which the law intends requires a prior act of juridical cognition.

But the process is dynamic or reflexive in a further sense. Once a given referent is cognised in legal terms, something is added to the world. The object or referent will be changed by the presence of the law. The text itself will have some effect, in terms of altering expectations; once the law begins to be applied, by officials, inspectors, judges, and so on, further effects can be anticipated. So, the legal form and the practice to which it relates co-evolve; they are co-constituted.

Does this way of thinking about the law-economy relation simply replace an ‘infinite regress’ (‘if the law constitutes the economy, what constitutes law?’) with a closed loop (‘law and the economy constitute each other’)? If so, this may not seem like progress. Positing the mutual interaction of variables can make it difficult to ascribe meaningful causal effects to any of them. It is necessary then to be more precise about what is meant by ‘coevolution’.

To say that the law reflects, or is endogenous, to its economic context does not imply that the law cannot shape that context in its turn. The law is not a precise replica or ‘mirror’ of society and is not constrained in its form or content by any particular societal status quo or normative teleology. Modern ‘positive’ law is an emanation of the nation state’s territorial monopoly over the use of force, and as long as that particular material reality is in place, the law can and will be used for any number of political ends, which are open at the point when the law is framed, and also to a lesser but still relevant degree when it is interpreted and applied. So, while law must cognise the object of regulation, and to that extent is endogenous to or reflexive with respect to that object, the goals of law are not predetermined or exhausted by its wider systemic context, whether it be that of the economy or any other sub-system.

But equally, to the extent that sub-systems have diverged from each other over time and are now more or less ‘autopoietic’ at the level of their own operations, we cannot expect the legal vision of a given economic referent to be adopted seamlessly by the economy. The economy must be able to process legal communications just as the law processes those from beyond its own boundaries. Because of systemic self-reference, this process is neither seamless nor automatic. The economy may resist legal signals; the business enterprise may reject, as alien to its own logic of accumulation, the law’s efforts to regulate it in the name of social policy (in the context of the 1954 Act, health and safety). Adjustments across systems are therefore likely to be ‘lagged’, ‘asynchronous’, ‘exapted’, ‘punctuated’, and so on. The process is not one of ‘evolution to efficiency’; there is no teleology, no predestined end waiting to be achieved.

It further follows that origins are more important than ends. Applying then the method of legal genealogy, what does the back-history of the Mines and Quarries Act reveal about its final form?

With reference to the Act, it is relevant to consider firstly the historical moment in which it was enacted. The mid-point of the twentieth century was the zenith of the large, vertically integrated industrial enterprise, and no more so than in the case of mining. Practically the whole of the British mining industry was under the control of just one company, which was a nationalised state corporation, the National Coal Board (‘NCB’).⁶⁴ The NCB was, for virtually all purposes (a very few micro-mines were still privately held), the ‘owner’ referred to in the Act.⁶⁵ As a nationalised company, the NCB was as close to being part of the state as a company could be in an otherwise ‘market’ economy. It was not formally a government department, but it was run in many ways as if it were. The chairman of the NCB (in effect also the chief executive) was in practice a political appointee, and often a former politician. Its statutory duties explicitly included a public interest remit.⁶⁶

The NCB was therefore exactly the type of enterprise in principle well suited to the legal model of hierarchical management set out in the 1954 Act. The translation of the Act into the-day-to-day operations of mines up and down the country was achieved in various ways: through the training and professionalisation of colliery managers; through state support for an independent system of mines inspection; and through collective bargaining with the independent mining unions.

However, closer inspection reveals that while the Mines and Quarries Act 1954 appears to have been well adapted to the context it was intended to regulate, it was not originally designed with that context in mind. The 1954 Act, implementing recommendations made by a governmental review of the 1930s,⁶⁷ mostly consolidated a model put in place several decades prior to nationalisation.

The legal construction of mine ‘management’ began in the second half of the nineteenth century. At this point the mining industry had been growing for several decades. It employed several hundred thousand people already by the 1820s, and played a pivotal role in Britain’s early industrialisation and in its imperial expansion.⁶⁸ However, the expansion of the coal industry and its importance for the British economy did not, in themselves, bring forth legal regulation of the industry’s organisational structures. Legal regulation of mine management only arose in response to public concerns over mine safety, triggered by several high-profile incidents.⁶⁹

Early mines legislation was not focused on improving working conditions, but on the exclusion of women and children from underground working.⁷⁰ The first legislation to make inspection mandatory dates from 1850.⁷¹ The Coal Mines Regulation Act 1872⁷² made it compulsory for the mine owner or their agent to appoint a ‘certificated manager’. The Coal Mines Regulation Act 1887 made similar provision for ‘under-managers’,⁷³ and the Coal Mines Act 1911 mandated the appointment of ‘firemen, examiners and deputies’.⁷⁴ This is the model whose more extended form was set out in Part II of the 1954 Act.

In the Victorian legislation there is a more explicit reference than in the 1954 Act to the possibility that the ‘owner’ of the mine would be a corporate person. Corporate and personal ownership co-existed in the industry at this point. Not all mining firms (in the extra-legal sense) were companies (in the legal sense). Some were constituted as partnerships, or in the form of the hybridised partnership-trust known as the ‘unincorporated company’.⁷⁵ Taking account of both possibilities, the Coal Mines Regulation Act 1887 contained this definition:⁷⁶

‘Owner’ when used in relation to any mine, means any person or body corporate who is the immediate proprietor or lessee, or occupier of any mine, or of any part thereof, and does not include a person or body corporate who merely receives a royalty, rent, or fine from a mine, or is merely the proprietor of a mine subject to any lease, grant, or license for the working thereof, or is merely the owner of the soil, and not interested in the minerals of the mine; but any contractor for the working of any mine, or any part thereof, shall be subject to this Act in like manner as if he were an owner, but so as not to exempt the owner from any liability … 

The definition was as extensive as it was in order to ensure that certain persons, (including ultimate owners; ‘mere’ owners of the subsoil; lessors; shareholders and other beneficiaries) would not be liable for breaches of the Act. Ownership of the capital interest conferred not just a right to profit from the conduct of enterprise, but immunity from corporate liabilities.

The 1887 Act also referred to the owner’s agent or representative:

‘Agent,’ when used in relation to any mine, means any person appointed as the representative of the owner in respect of any mine, or of any part thereof, and as such superior to a manager appointed in pursuance of this Act;⁷⁷ … 

The category ‘agent’ does not appear in the 1954 Act, being no longer necessary at a point when corporate ownership was the norm.

The terms ‘manager’ and under-manager’ do not appear in the definition section of the 1872 or 1887 Acts, but their functions are described elsewhere, for example in the 1887 Act:

Certificated Managers

20 (1) Every mine shall be under a manager, who shall be responsible for the control, management, and direction of the mine, and the owner or agent of every such mine shall nominate himself or some other person to be the manager of such mine, and shall send written notice to the inspector of the district of the manager's name and address.

(2) A person shall not be qualified to be a manager of a mine unless he is for the time being registered as the holder of a first class certificate under this Act.

 … 

21 (1) In every mine required by this Act to be under the control of a certificated manager, daily personal supervision shall be exercised either by the manager, or by an under manager nominated in writing by the owner or agent of the mine.

(2) Every person so nominated must hold either a first class or second class certificate under this Act, and shall, in the absence of the manager, have the same responsibility, and be subject to the same liabilities as the manager under this Act; but the nomination of an under manager shall not affect the personal responsibility of the manager under this Act.

The origin of this particular legal definition of ‘management’ as a practice associated with ‘control’ and ‘direction’ is therefore to be found the nineteenth century, not the twentieth one.

A number of additional features of this definition may be noted. Firstly, it is invariant to the corporate form in which the enterprise was held. The Victorian Acts, in common with the 1954 law, could be applied to a corporate person, or a non-corporate one.

Secondly, there is no reference to an ‘employer’. In other words, the model works without the law needing to designate the owner, corporate or otherwise, as the employer of the ‘manager’, ‘under-manager’, and so on. These officials must be ‘appointed’ but the Acts are silent on the identity of the person or entity employing them.

This omission is revealing. When the 1872 and 1887 Acts were passed, vertical integration was by no means as widespread as it was in 1954. The ultimate ‘owner’, whether or not a company, was often not contracted to those working in the mine via a contract of service or employment. It was more common for the immediate employers of the men to be labour-only subcontractors known in some regions as ‘buttees’; they in turn would be contracted by the owner’s representative or agent. The typical mid-Victorian mining company was what would now be called a ‘virtual corporation’, employing few people directly.⁷⁸

What we see, then, is not the Victorian Acts reflecting the vertically integrated firm, as if it already existed. Rather, these Acts were projecting on to mining a model of vertically integrated management which was still in the process of forming. Some mines were already organised this way and formed the template for the model set out in the Act. But many were not. Over the course of the succeeding decades, particularly after the 1911 Act’s addition of the categories of overman and deputy, this model gradually became instantiated in law and generalised in practice.

The vertically integrated mine was thus, in some sense, the creation of the law.⁷⁹ Vertical integration was a norm before it was a fact, or at least as it was in the course of becoming one.

The normativity of law framed the definition process. The Victorian Mining Acts were not identifying management as a legal category as if they were part of a process of ‘Linnaean’ classification of a species or genus. They were not, in other words, categorising a world which was understood to already exist. The legal ‘imagining’ of ‘management’ was a function of the law’s normativity; in this case, the goal of ensuring the safety of mining operations. It might be said that the legislation was not so much mapping the practice of management as ‘norming’ it into existence.

How then was the law received? That translating the emerging concept of enterprise liability⁸⁰ into practice was anything but a straightforward process is suggested by the circumstances of the worst mining disaster in British history, which occurred several decades after the attempt to regulate mine safety had begun. The incident took place on 4 October 1913 at the Universal mine in Senghenydd, South Wales.⁸¹ 439 miners, and one rescuer, were killed following an underground explosion, most likely caused when a spark from underground signalling equipment ignited firedamp, a combination of methane and hydrogen which was a by-product of the mining process. The accident could probably have been avoided if the management of the mine had implemented safety measures mandated by the Coal Mines Act 1911. That Act had required the installation of fans which could reverse the underground air flow. The danger of an explosion from firedamp was a known hazard, following an explosion which caused the death of over 1,000 miners at Courrières in northern France in 1913. The fans were due to have been installed at Senghenydd by January 2013, but the Mines Inspectorate had given the colliery an extension to September; this was also missed, and nothing had been done by the time of the accident. Following the events of 4 October 1913, the mine manager and the corporate owner of the mine were prosecuted. The manager was fined £24 and returned to his post, which he held until 1928; the company was fined £10. A coroner’s jury returned a verdict of accidental death.

Mining fatalities began a slow decline after Senghenydd. Major incidents persisted into the era of nationalisation, although by the 1980s the industry had achieved an historically unprecedented level of safety.⁸² By the end of that decade, however, the British coal industry was on the verge of disappearing.⁸³ Part II of the Mines and Quarries Act 1954 was repealed in 1993.⁸⁴

4. Assessment and conclusion

If there are multiple views of the ‘firm’ in economics, there are equally many understandings of it in law. The legal categories ‘company’ or ‘corporation’, and by extension ‘company law’ or ‘corporate law’, only capture a part of what ‘firms’ or ‘enterprises’ do or are. The focus of company law is on the raising of capital for productive enterprise. Management is, from this point of view, practically a black box. To see how management functions within the organisation of the firm, we have to look elsewhere.

This article has demonstrated how, in the part of corporate law where health and safety concerns are to the fore, it is possible to observe a legal conception of management as a hierarchy, charged not just with meeting the productive goals of the firm, but with ensuring its reconciliation with objectives of social policy. Through a genealogical analysis, we can see how the legal understanding of ‘management’ was constructed over time. It was the result, on the one hand, of public pressure for reform, stimulated by concern over mining accidents. It was also, on the other, a process mediated by and through the creation of a specifically legal or juridical language, translating the phenomenon of the business firm into conceptual categories familiar to legal reasoning. This was not a passive process of description, but an active or reflexive one, in which the law served at least partially to constitute the object of its own intervention. Once defined and regulated by law, the vertically integrated firm became ‘normalised’ as the predominant mode of business organisation.

Law ‘constitutes’ the capitalist firm not just through the material operation of legal rules, but through the cognitive framing which occurs at the level of juridical concepts. Law normalises, extends and scales not just particular behaviours, but the values instantiated in legal rules. The mid-twentieth century corporation was as much a normative category as a descriptive one. Vertical integration was a means of aiming for economies of scale, on the one hand, and the internalisation of risk, on the other. The mid-twentieth century corporation, not least in its nationalised or state-owned form, sought to strike a balance between the ‘efficient development’ of corporate assets and ‘the public interest in all respects’.⁸⁵

The twenty-first century corporation, which by comparison to its twentieth century predecessor is highly fragmented and fissured, has correspondingly more flexibility in externalising social and environmental harms, as did the Victorian forebear of them both.⁸⁶ With the rise of platform capitalism, we are seeing a return to the use of disintermediation to break up the legal structure of the firm, potentially denying workers much needed protections including those of health and safety law.⁸⁷ Management has not disappeared as a social reality merely because it is now less visible in law, but the lack of a good legal account of management in the twenty first century may make it more difficult to hold enterprises responsible for the risks they create.⁸⁸ In this respect, the legal legacy of the British coal industry is one worthy of closer study.

Acknowledgement

I am grateful to the editors of this Special Issue and to two anonymous referees for feedback on an earlier draft.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Simon Deakin

Simon Deakin is Professor of Law (2006) and Director of the Centre for Business Research at the University of Cambridge., where he leads an interdisciplinary research programme on corporate governance and the economics of law. His books include The Law of the Labour Market (with Frank Wilkinson), Hedge Fund Activism in Japan (with John Buchanan and Dominc Chai) and Is Law Computable? (with Chris Markou). He is editor in chief of the Industrial Law Journal and an editor of the Cambridge Journal of Economics. In 2023 he was voted Cambridge Students Union research supervisor of the year.

Notes

1 Jean-Philippe Robé, ‘The legal structure of the firm’ (201) 1 Accounting, Economics and Law: A Convivium 1-88. See, relatedly, Simon Deakin, David Gindis and Geoffrey M. Hodgson, ‘What is a firm? A reply to Jean-Philippe Robe’ (2021) 17 Journal of Institutional Economics 861-71; Jean-Philippe Robé, ‘Firms versus corporations: a rebuttal of Simon Deakin, David Gindis and Geoffrey M. Hodgson’ (2022) 18 Journal of Institutional Economics 693-701; Simon Deakin, David Gindis and Geoffrey M. Hodgson, ‘A further reply to Jean-Philippe Robé on the firm’ (2022) 18 Journal of Institutional Economics 703-6.

2 On law’s self-reference, see Niklas Luhmann, Social Systems, trans. John Bednarz with Dirk Baecker (Palo Alto, CA: Stanford UP, 1996), at p. 9: ‘The theory of self-referential systems maintain that systems can differentiate only by self-reference, which is to say, only insofar as systems refer to themselves (be this to elements of the same system, to operations of the same system, or to the unity of the same system) in constituting their elements and their elemental operations. To make this possible, systems must create and employ a description of themselves; they must at least be able to use the difference between system and environment within themselves, for orientation and as a principle for creating information’. While other paradigms could be chosen as a basis for analysing the law-economy relation, systems theory is particularly relevant by virtue of its attention to the distinctive, self-referential quality of legal (‘juridical’) language, while avoiding seeing legal concepts as remote from their social and economic context. At the same time, for reasons explored further below, not all aspects of Luhmann’s thought sit straightforwardly with a realist understanding of law; to this extent, use of systems theory in this paper should not be taken to signify agreement with all aspect of Luhmann’s thought, nor with what are generally taken to be conventional understandings of it (disagreements with certain interpretations of it are noted below). For a similar emphasis on the need for realism in law, discussing autopoiesis, mutual constitution and genealogical method, see Brian Tamanaha, A Realistic Theory of Law (Cambridge: CUP 2017).

3 Without a ‘boundary’ between the system and its environment, it is not possible to speak of there being a system in any functional sense. The existence of the boundary is the condition for the internal operation of the system. At the same time, the presence of the boundary does not at all rule out mutual influences between systems; it is, in a sense, their precondition. See Luhmann, Social Systems, at p. 29: boundaries ‘have the double function of separating and connecting system and environment. This double function can be clarified by means of the distinction between system and relation, a clarification that at the same time returns us to the thematic of complexity. As soon as boundaries are defined sharply, elements must be attributed either to the system or to the environment. Yet relations between system and environment can exist. Thus a boundary separates elements, but not necessarily relations. It separates events, but lets causal effects pass through’.

4 Niklas Luhmann, Law as a Social System, trans. Klaus A. Ziegert, Edited by Fatima Kastner, Richard Nobles, David Schiff, and Rosamund Ziegert (Oxford: OUP 2004), at p. 340: ‘with the help of concepts, distinctions can be stored and made available for a great number of decisions. In other words, concepts compound information, thereby producing the redundancy required in the system … The legal system applies a higher-ranking organization of redundancies and for that it requires a terminology that is particular to law … Hence concepts are genuinely historical artefacts, auxiliary tools for the retrieving of past experiences in dealing with legal cases.’

5 Ioannis Kampourakis, ‘Empiricism, constructivism, and grand theory in sociological approaches to law: the case of transnational private regulation’ (2020) 21 German Law Journal 1411-26, at 1416: ‘systems theory posits that society is differentiated into distinct social systems, each with its own code of communication and, inevitably, its own episteme’.

6 Robert Gordon, ‘Critical legal histories’ (1984) 36 Stanford Law Review 57-125, at p. 117: ‘The “economy” is no more “real” than “legal ideas”. It’s an assemblage of conventions of which “legal ideas” such as property, contract, promissory and fiduciary obligation, not to mention money itself, are indispensable elements and propagators’.

7 Roy Bhaskar, A Realist Theory of Science 3rd. ed. (London: Verso 2008), at p. 36: the epistemic fallacy ‘consists in the view that statements about being can be reduced to or analysed in terms of statements about knowledge’. A more complete account of the relevance of Bhaskar’s critical realist philosophy for law is beyond the scope of the current paper.

8 The observation of reflexivity in the construction of knowledge categories is one of the principal contributions made by modern ‘pragmatic’ sociology and the economics of conventions which together form a major school of continental European social theory and empirical study. Thus statistical categories, such as ‘unemployment’, do not passively reflect an external reality, but shape it in numerous ways (Robert Salais, Nicolas Baverez and Bénédicte Reynaud, L’Invention du chômage (Paris: PUF 1999)), while social science ‘data’ more generally are constructed in ways which reflect, while often serving to conceal, normative choices (Alain Desrosières, The Politics of Large Numbers: A History of Statistical Reasoning, trans. Camille Naish (Cambridge, MA: Harvard UP 2002)).

9 For a recent overview of the state of the art in convention theory and related empirical studies see Rainier Diaz-Bone and Guillemette de Larquier (eds.) Handbook of Economics and Sociology of Conventions (Frankfurt: Springer 2022).

10 For this purpose, the category ‘fact’ is indeed something which scientific method constructs in order to make the external world meaningful in terms of its own processes. Thus ‘science does not discover any outside facts; it produces facts’: Kampourakis, ‘Empiricism, constructivism and grand theory’, at p. 1416, citing Gunther Teubner, ‘How the law thinks: towards a constructivist epistemology of law’ (1989) 23 Law and Society Review 727-58, at p. 743. However, it should be clear that to accept this proposition does not entail accepting that there is no ‘world’ or reality, social or otherwise, to which ‘facts’ relate.

11 Science, then, is a method for understanding the world; if it were reducible to that world, it would have nothing to add to it. Luhmann, Social Systems, at p. 56: science ‘does not simply trace how these systems [which it observes] experience themselves and their environment. And it does not simply duplicate the view of the self it observes … In its analysis science uses conceptual abstractions that do not do justice to the observed system’s concrete knowledge of its milieu or to its ongoing self-experience. On the basis of such reductions – and this is what justifies it – more complexity becomes visible than is accessible to the observed system itself’. Thus the sociological study of law, which treats law as an external object, is not the same as the interpretive analysis of legal texts, which can be understood as a process internal to law’s own operations. The distinction between ‘external’ and ‘internal’ viewpoints on law was familiar to twentieth century legal positivism, and, indeed, formed an essential step in its project of differentiating law as a discipline from the then still emerging discipline of sociology: Hans Kelsen, Introduction to the Problems of Legal Theory, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 1992; originally published in 1934), at p. 13 (‘cognition of legal norms vs. legal sociology’).

12 For a somewhat different emphasis see Kampourakis, ‘Empiricism, constructivism and grand theory’, at p. 1416: ‘legal autopoiesis, and by extension, societal constitutionalism, relies on a postmodern, constructivist social epistemology, according to which there is no “reality” to be discovered. Instead, “reality” is constructed’. In response, it may be suggested that this process of legal construction does not take place outside society, and can itself be studied, using relevant methods including the sociology and economics of law.

13 Rather than presenting social systems as inherently closed, Luhmann’s theoretical framework is better thought of, as he put it, as rejecting the ‘classical opposition of open and closed systems’ (Social Systems, at p. 37). While he rejects ‘point to point correspondences’ between sub-systems, his approach anticipates ‘mutual adjustments, corrections or supplementations [which] need not necessarily occur at the same time or follow one another continuously’ (ibid, at p. 43). Elsewhere he wrote: ‘It scarcely needs to be repeated that the closure and autopoietic reproduction of the legal system does not exclude causal relations between system and environment (law and society and their environment) but requires them’ (Law as a Social System, at p. 477).

14 Luhmann, Law as a Social System, at p. 233: ‘Evolution is not a gradual, continuous, seamless increase in complexity but a mode for structural change that is altogether compatible with erratic radical changes (“catastrophes”) and with long periods of stagnation (“stasis”)’, referring to Stephen Jay Gould’s theory of punctuated equilibrium. Since it is exactly the coexistence of long periods of statis with sudden rapid change that characterises this understanding of evolution, the question of whether legal change is incremental or rapid in any given period must be an empirical one.

15 Teubner, ‘How the law thinks’; Kampourakis, ‘Empiricism, constructivism and grand theory’.

16 For discussion see Krzysztof Matuszek, ‘Ontology, reality and construction in Niklas Luhmann’s theory’ (2015) 10 Constructivist Foundations 203-10, concluding (at p. 203) that ‘Luhmann is not a realist’.

17 Talcott Parsons, The Structure of Social Action (New York: McGraw Hill 1937).

18 In other words, the separation in historical time of the different sub-systems does not in any way rule out the possibility that they share common discursive or communicative elements, which may facilitate the process by which they translate each other’s communications. Thus the categories used by modern private law to describe economic action, such as ‘contract’, ‘corporation’, ‘employee’ and so on, might be expected to share elements in common with the parallel usages in the economy. How far this is the case is a matter for empirical analysis.

19 Ioannis Kampourakis (‘Empiricism, constructivism and grand theory’), argues that in ‘admitting the possibility of objective empirical knowledge’ empirical legal scholarship ‘follows the currents of logical empiricism and positivism in social sciences’. Although he makes this point in the context of a discussion of quantitative (statistical) approaches to law, the association of empirical legal research with ‘positivism in the social sciences’ is arguably too narrow. There is no reason why empirical legal research, including quantitative approaches, cannot take a form which is consistent with non-positivist (but still realist) approaches to social science, such as ‘pragmatic sociology’ and the economics of conventions (see references in ns. 8 and 9 above); nor are empirical legal studies confined to statistical analyses, the case study set out in this paper being one such example.

20 Zoe Adams, Labour and the Wage: A Critical Perspective (Oxford: OUP 2020), at p. 16 (‘tracing the evolution of a particular concept over time, genealogy allows us to read contingency into the past, to expose all that which is implied by the existence of something that otherwise appears as natural or self-evident’).

21 Mark Freedland, ‘The role of the contract of employment in modern labour law’, in Lammy Betten (ed.) The Employment Contract in Transforming Labour Relations (Deventer: Kluwer). The strictly binary nature of the divide has been mitigated somewhat by the increased use, since the late 1990s, of the ‘worker’ concept: see Zoe Adams, Catherine Barnard, Simon Deakin and Sarah Fraser Butlin, Deakin and Morris’ Labour Law 7th. ed. (Oxford: Hart 2021), at [2.18].

22 Simon Deakin, ‘The contract of employment: a study in legal evolution’ (2001) 11 Historical Studies in Industrial Relations 1-36, at p. 33.

23 Simon Deakin and Frank Wilkinson, The Law of the Labour Market: Industrialization, Employment and Legal Evolution (Oxford: OUP 2005), at pp. 78-80.

24 Daphne Simon, ‘Master and Servant’, in John Saville (ed.) Democracy and the Labour Movement: Essays in Honour of Dona Torr (London: Lawrence and Wishart 1954); Douglas Hay and Paul Craven (eds.) Masters, Servants and Magistrates in Britain and the Empire, 1562–1955 (Chapel Hill, NC: University of Carolina Press 2004).

25 Douglas Hay, ‘Master and servant in England: using the law in the eighteenth and nineteenth centuries’, in Willibald Steinmetz (ed.) Private Law and Social Inequality in the Industrial Age: Comparing Legal Cultures in Britain, France, Germany and the United States (Oxford: OUP 2000), at p. 232: ‘It is worth noting that the cases that appear in the Law Reports are highly unrepresentative, in many ways, and especially as guides to enforcement, although important for an understanding of both judicial thinking and political conflict’.

26 Relevant sources in the business and labour history literature on this point include Sidney Pollard, The Genesis of Modern Management (Harmondsworth: Penguin 1968), Craig Littler, The Development of the Labour Process in Capitalist Societies (Aldershot: Gower 1986), and Richard Biernacki, The Fabrication of Labour: Germany and Britain, 1640–1914 (Berkeley, CA: University of California Press 1995).

27 Deakin and Wilkinson, The Law of the Labour Market, at pp. 95-100.

28 Ibid.

29 Simon Deakin, ‘The many futures of the contract of employment’, in Joanne Conaghan, Richard Michael Fischl and Karl Klare (eds.) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (Oxford: OUP 2004). The approach to genealogy developed in the current paper does not prejudge how useful to contemporary circumstances a given concept will be found to be. Concepts may be the result of earlier contingencies, but still find new uses, indeed, this is normal. For a somewhat different view of genealogical method, see Emilios Christodoulidis, ‘Labour constitutionalism in a genealogical key’ (2018) 9 Jurisprudence 413-7, according to whom (at p. 117) it is necessary to avoid a ‘domesticated [sic] understanding of genealogy’ in favour of one based on ‘disruption’. Citing Foucault, he rejects the idea that there is any ‘primary’ reality to be studied; ‘everything is already interpretation’. On the dangers of falling into the ‘epistemic fallacy’, which include abandoning the possibility of an empirical social science that can generate new knowledge, see above, section 2.

30 It is also rare to find company law scholarship addressing the issue of the legal understanding of management. A notable exception is Andrew Johnston, Blanche Segrestin and Armand Hatchuel, ‘From balanced enterprise to hostile takeover: how the law forgot about management’ (2019) 39 Legal Studies 75-97.

31 The Companies (Model Articles) Regulations, SI 2008/3229, Sch. 3.

32 Companies Act 2006, s. 174(1) (‘a director of a company must exercise reasonable care, skill and diligence’).

33 This does not absolve a director of a duty to supervise and monitor management (Re Barings plc (No. 3) [1999] BCLC 433), but nor does it impose a non-delegable duty under which the breach committed by the relevant officer or manager is necessarily imputed to an individual director or the board as a whole. See Simon Deakin, ‘What directors do (and fail to do): some comparative notes on board structure and corporate governance’ (2010-11) 55 New York Law School Law Review 525–41.

34 UK Corporate Governance Code (2018) (‘CGC’), para. 25. A new version of the Code, adopted in January 2024, is due to come into force in January 2025. Its references to 'management' are mostly unchanged from the 2018 version. The CGC is a non-binding code of practice, directed at listed companies; in its mode of operation it is highly persuasive, given that non-compliance, in the absence of a satisfactory explanation, can in principle lead to de-listing. For a recent discussion of trends on compliance using a Foucauldian frame, see John Roberts, Paul Sanderson, David Seidl and Antonije Krivokapic, ‘The UK Corporate Governance Code principle of “comply or explain”: understanding code compliance as “subjection”’ (2020) 56 Abacus 602-26.

35 CGC 2018, para. 2.

36 CGC 2018, para. 8.

37 CGC 2018, Principle H.

38 CGC 2018, para. 13.

39 CGC 2018, p. 8.

40 CGC 2018, Principle J and para. 19.

41 CGC 2018, para. 23.

42 CGC 2018, Principle Q and paras. 32-41.

43 Mines and Quarries Act 1954, s. 181(1).

44 MQA 1954, s. 1(1)(a).

45 MQA 1954, s. 2(2).

46 MQA 1954, s. 2(2)(a).

47 MQA 1954, s. 2(1).

48 MQA 1954, s. 3(1).

49 MQA 1954, s. 3(2).

50 MQA 1954, s. 6(4).

51 MQA 1954, s. 8.

52 MQA 1954, s. 11.

53 MQA 1954, s. 12.

54 MQA 1954, s. 12(1)(b).

55 MQA 1954, s. 13(1).

56 MQA 1954, ss. 1(1)(a), 181(1).

57 MQA 1954, s. 13(1)(c).

58 MQA 1954, ss. 1(1)(a), 2(2).

59 MQA 1954, s. 2(2).

60 MQA 1954, s. 3(1), (2), (3).

61 MQA 1954, s. 12(1)(b).

62 MQA 1954, ss. 8, 13(1)(b).

63 MQA 1954, s. 3(2).

64 The NCB was set up under the Coal Industry Nationalisation Act 1946 (‘CINA’), with effect from 1 January 1947. It was renamed the British Coal Corporation in the early 1980s.

65 Under CINA, s. 1(1)(a), the NCB was charged with ‘working and getting the coal in Great Britain, to the exclusion of any other person’.

66 In addition to being charged with ‘securing the efficient development of the coal mining industry’ (CINA, s. 1(1)(b))’, the Board was under a duty to make ‘supplies of coal available, of such qualities and sizes, in such quantities and at such prices, as may seem to them best calculated to further the public interest in all respects, including the avoidance of any undue or unreasonable preference or advantage’ (CINA, s. 1(1)(c)).

67 Report of the Royal Commission on Safety in Coal Mines, Cmd. 5890 (1938).

68 See generally Roy Church, The History of the British Coal Industry Volume 3: 1830-1913: Victorian Pre-eminence (Oxford: OUP 1986).

69 These led to two House of Common Select Committee reports on safety in coal mines, in 1835 (British Parliamentary Papers 1835, vol. V) and 1849 (British Parliamentary Papers 1849, vol. VII.)

70 Mines and Collieries Act 1842 (5 & 6 Vict. c. 99).

71 Coal Mines Inspection Act 1850 (13 & 14 Vict. c. 100).

72 35 & 36 Vict. c. 76.

73 50 & 51 Vict. c. 58.

74 1 & 2 Geo. V c. 50.

75 Church, History of the British Coal Industry.

76 CMRA 1887, s. 75.

77 Ibid.

78 Church, History of the British Coal Industry; on the continuing legal significance of ‘internal contracting’ in mining into the twentieth century, see Deakin and Wilkinson, The Law of the Labour Market, at p. 98.

79 It is not coincidental that the parallel process of identifying the nature of the employer’s liability in tort law, constructed around the concept of the non-delegable duty of care, should have occurred in the context of a mining accident: Wilsons and Clyde Coal Co Ltd v. English [1938] AC 57.

80 ‘Enterprise liability’, or the idea that the enterprise, through the corporate form, should be liable for the risks inherent in its mode of operations can be seen taking shape in numerous areas of law in the final quarter of the nineteenth century and the first half of the twentieth. In tort law, for example, it can be seen in the development of the action for breach of statutory duty, circumventing the limitations posed by the doctrine of employment, and in the specialised statutory scheme of workmen’s compensation legislation. See Simon Deakin, ‘Tort law and workmen’s compensation legislation: complementary or competing models?’, in T.T. Arvind and Jenny Steele (eds.) Tort Law and the Legislature: Common Law, Statute, and the Dynamics of Legal Change (Oxford: Hart 2012).

81 See John Brown, The Valley of the Shadow: An Account of Britain's Worst Mining Disaster, the Senghenydd Explosion (Port Talbot: Alun Books 2009); Jen Llewellyn, Remember Senghenydd – The Colliery Disaster of 1913 (Llanrwst: Gwasg Carreg Gwalch 2013).

82 Incidents involving deaths in double figures were recorded throughout the 1970s (see the website of the Coal Mining History Resource Centre, http://www.cmhrc.co.uk/site/disasters/ (accessed 30 December 2022). Any assessment of the NCB’s safety record must also take account of the catastrophic Aberfan disaster of 1967, in which more than 200 schoolchildren were killed when a spoil heap collapsed, causing a landslide which reached an adjoining village. Ian McLean and Martin Johnes set out the culpability of the NCB’s management in Aberfan: Government and Disasters (Cardiff: Welsh Academic Press 2000).

83 The industry was privatized in 1995, and swiftly shrank. The last deep mine (Kellingley Colliery, in Yorkshire) closed in 2015. In 2019 planning permission was given for a new deep mine, Woodhouse Colliery, to be opened near Whitehaven in Cumbria; at the time of writing, the mine is yet to begin operations.

84 By the Management and Administration of Safety and Health at Mines Regulations, SI 1993/1897, which reproduced Part II of the MQA in a modernized form. Thus reg. 10 imposes a duty to ‘(a)establish a management structure (which shall include the manager) that is suitable for the mine and the management structure shall be set down in writing and shall define the extent of authority and responsibility of the persons in it; and (b) ensure that a sufficient number of suitably qualified and competent persons are appointed in the management structure’. The 1993 regulations also use the concept of the ‘employer’ to clarify the obligations of the corporate owner, a departure from the 1954 Act and reflecting the greater use of this terminology in the intervening period, on which see Simon Deakin, ‘The changing concept of the employer in labour law’ (2000) Industrial Law Journal 72-84; Jeremias Adams-Prassl, The Concept of the Employer (Oxford: OUP 2015).

85 This is the language used in section 1(1) of the Coal Industry Nationalisation Act 1946; see above, section 2.

86 David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can be Done About It (Cambridge, MA: Harvard UP 2017).

87 Jeremias Adams-Prassl, Humans as a Service: The Perils and Perils of Work in the Gig Economy (Oxford: OUP 2018); Antonio Aloisi and Valerio De Stefano, Your Boss is an Algorithm: Artificial Intelligence, Platform Work and Labour (London: Bloomsbury 2022).

88 In a similar vein, see Johnston et al., ‘From balanced enterprise to hostile takeover’, arguing that the company law of the early decades of the twentieth century ‘accommodated’ the emergence of professional managers in vertically integrated firms, but without ‘positively supporting’ the management function. This neglect, they argue, paved the way for the reforms implemented in the Companies Act 1948 which asserted the power of shareholders over boards and managers. It thereby helped to create the circumstances for the hostile takeover movement, which ultimately served to disempower productive interests within the firm and in society at large, to the benefit of financial ones.