The Future Regulation of Work

New Concepts, New Paradigms

Nicole Busby, Douglas Brodie, Rebecca Zahn, Nicole Busby, Douglas Brodie, Rebecca Zahn

• Publisher: Palgrave Macmillan
• Year: 2016
• Print ISBN: 9781137432438
• eBook ISBN: 9781137432445
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

Labour law is in crisis. Global economic factors and the changing contours of work and workplace relations have led to a reorientation of the social, economic, political and cultural environment within which labour law has developed. This is not a jurisdictional problem but rather is deeply entrenched in transnational development. Solutions must recognise and mobilise the transformational shift that has taken place over recent decades. Law should be viewed as a force for and a facilitator of change, capable of expressing and determining social relations. The essays in this book explore the challenges posed by labour law's potential reinvention as a discipline fit for accommodating and investigating such change within a range of different but connected jurisdictional and regulatory concepts and paradigms.

Part I
The Regulation of Work: Imagining the Future

1

A new vocabulary and imaginary for labour law: Taking legal constitution, gender, and social reproduction seriously

Judy Fudge

France-ILO Chair, Institute of Advanced Legal Studies, Nantes, France; Professor, Kent Law School, UK

The woman question is one of the organisation of society as a whole.¹

Introduction

The erosion of the standard employment relationship,² the male breadwinner and female housewife gender contract, the vertically integrated firm, and trade unions’ economic and political power have combined with globalising economic relations to create a crisis for labour law in the developed world as labour law’s norms have been weakened and its ability to protect workers has been undermined.³ In the developing world, labour law’s capacity to provide a stable framework for production and social protection for workers has long been in question since the majority of workers in countries like India are in informal employment.⁴ Feminist researchers in labour law and political economy have made important theoretical contributions to how ‘labour’ and the ‘labour market’ are conceived and about how ‘law’ is understood. A distinctively feminist approach to labour, one which extends the boundaries of the field beyond paid work to unpaid caring labour, has developed, and feminist approaches to law have moved from an instrumental to a more complex approach that recognises the normative, institutional, and discursive dimension of law and its dynamic and contradictory relationship with the social.⁵ However, despite the conceptual advances made by feminist labour law scholars, within the mainstream of labour law scholarship, feminist concerns have tended to be treated as matters of morals or ethics, engaging issues of inequality, subordination, or devaluation, and relegated to the margins of the discipline. While the normative dimension of feminist legal scholarship is important, greater attention to the conceptual contributions of feminist labour law scholarship can, I argue below, be used to revitalise our thinking about labour law for a post-industrial and globalised world.

In this chapter I will make three linked arguments about how feminist legal scholarship and feminist conceptions of work and the labour market can be used to inspire our thinking about new ways to regulate work.⁶ First, I will argue that it is important to appreciate law’s constitutive (or construc-tive) power instead of simply thinking of the law either as an instrument that acts upon social relations or as a purely symbolic force that projects social values.⁷ What I mean by legal constitution is that legal institutions simultaneously channel social relations and activities and attribute different kinds of value to them.⁸ I will illustrate my claim that law is constitutive by focusing on the advent of industrial capitalism, the resulting separation of paid and unpaid work, and the concomitant institutionalisa-tion of a specific gendered division of labour. My claim is that legal institutions and legal norms did not simply reflect natural differences between the sexes but, instead, were deeply implicated in gendering different forms of work. By using the term ‘gendering’ I am emphasising the constructed and interconnected nature of social categories and social relations, such as class, race, religion, ethnicity, and migrant status.⁹ The separation of paid and unpaid work by and through legal institutions shaped women’s labour force participation and the type of employment arrangements to which women were relegated, as well as the value attributed to these different kinds of work. In these ways legal institutions such as the contract of employment have constituted (or constructed) work arrangements and norms that are deeply gendered.

My second argument is that it is important not only to recognise that care and other types of unpaid domestic work performed for others in the household are valuable, but that they are critical components of labour markets and essential to the operation of societies.¹⁰ Drawing on feminist labour law and political economy literature, I argue that the concept of social reproduction helps us to theorise labour supply as an essential component of labour markets, one that is institutionally shaped and regulated. Instead of seeing labour markets as exchanges, they are better understood as instituted processes, which help to mediate, although never fully resolve, a number of linked and recurring dilemmas integral to capitalist labour markets. I argue that recent labour law scholarship that has sought to widen the ambit of the field of labour law beyond the contract of employment to encompass the labour market more generally has failed to be sufficiently attentive to the range of social processes and institutions involved in fashioning work relations.

My third argument builds upon this expanded conception of the labour market in order to free our understanding of the role of labour law from its tether to the contract of employment, which is a historically and spatially specific institution for resolving some of the recurring dilemmas of capitalist labour markets. The goal is not to expand the scope of labour law so that unpaid work is simply brought within it; rather the idea is to develop a new imaginary of labour law which draws upon a more inclusive characterisation of the social processes and institutions that constitute a labour market and a more robust conception of social justice which is grounded in a notion of democratic equality. I propose a constellation of integrated policies, comprising a guaranteed minimum annual income, a reduced work week, and a right to care, as transformative reforms with the potential to address subordination in the process involved in institutionalising the supply and demand sides of the labour market.

Labour law as a gendering process: Separating paid and unpaid work

In Britain, prior to the development of markets for labour the relationship of subordinated labour was treated as one of status. According to William Blackstone’s authoritative 1765 treatise, Commentaries on the Laws of England, the relationship of master and servant, along with that of father and child and wife and husband, was marked not by equality and freedom, but by paternalism and dependence.¹¹ Throughout the history of the poor law, married women were treated as economically dependent upon their husbands, with little independent access to poor relief.¹² With the advent of large-scale industrialisation, master and servant status relations gradually (and incompletely) gave way to contract as the predominant legal device for regulating the allocation and control of labour.¹³ The household began to be separated from the worksite, and the wage became the key source of income for those who did not own property. This process of marketisation simultaneously undermined older forms of protection and emancipated workers from paternalism.¹⁴

The concept of contract was crucial for the development of markets. The gradual extension of civil rights to propertyless men in the eighteenth century enabled them to enter into contracts and to enforce their promises. The employment contract became the primary means for men to obtain access to the means of subsistence. However, married women were incapa-ble of entering into contracts. As Blackstone explained,¹⁵

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called … a feme-covert. …

The legal doctrine of coverture ensured that status and patriarchy continued as the form of regulation for the ‘private, intimate and affective space of the home’.¹⁶ Outside the household in the market the new legal tax-onomy for ‘productive work’ – the employment contract – complemented and partially supplanted master and servant law. Unlike men, who as serv-ants or employees surrendered their capacities only temporarily, married women were permanently dependents, as they were not considered to be ‘proprietors of their own capacities’ and therefore dependent upon the ‘wills of others’.¹⁷

The separation of family and household from the market and from poli-tics is central to classical contract theory. Women were not parties, but subject, to the social contract. Carol Pateman argues that the social contract constituted a sexual contract in a dual sense; not only was it patriarchal in terms of establishing men’s political right over women, but it was ‘also sexual in the sense of establishing orderly access by men to women’s bodies’.¹⁸ Although the marriage contract is seen as a ‘free’ agreement, women’s unequal legal, and later economic, position ‘forces them to consent to their own subordination’.¹⁹

In the late nineteenth and early twentieth century, as men’s wages improved through collective economic and political action, laws, regulations, and workplace practices excluded women from paid employment, confining them to the household, where they were responsible for domestic labour.²⁰ Moreover, ‘as wages became the dominant mode of recognising and rewarding labour, women’s unpaid domestic contribution began to disappear as real work’.²¹ Despite the abolition of coverture in the late nineteenth century, the embrace of more intensive production techniques along with ‘Taylorist’ organisation of labour processes made it increasingly difficult for women to combine childbearing and childrearing with paid work. Middle-class norms of marriage, family, and domesticity gained social currency, and the family and household came to be associated with love while the workplace was associated with money, obscuring the extent to which marriage and cohabitation with men was an economic necessity for most women and the degree to which legal inequality was inscribed within marriage and the family. The home and family were normatively, if not actually, constructed as a haven from work and the market, governed by affective relations.²² The assumption, which was not necessarily borne out in practice, was that there was equal sharing within the household.²³

Women’s economic dependency upon men was reinforced by laws that excluded married women from certain types of work (such as the civil service) and discriminatory practices by male co-workers and employers.²⁵ In turn, married women’s economic dependence on men’s wages reinforced male privilege and power within the household. Simultaneously, ‘marriage and family law codified wives’ duty to provide domestic services’ and ‘social welfare provisions for dependent disabled individuals traditionally assumed that family members, particularly wives and mothers, had primary responsibility for providing unpaid care’.²⁶

The contract of employment, which is layered upon duties derived from master and servant law, was the primary device for dealing with issues pertaining to labour demand such as allocation and discipline. Collective bargaining law developed to address collective conflicts between workers and employers. Combined, they comprised the field of labour law, a legal jurisdiction that has its own assumptions, primarily that the power imbalance between employers and employees should be diminished and that conflict between them should be minimised at the same time that productive activity should be promoted, and its own techniques, such as collective bargaining and minimum standards legislation. The contract of employment, which is a very specific legal format for subordinated labour that depends on a series of institutional linkages forged in specific places and at specific times, has come to be seen as the (exclusiv...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Notes on Contributors
• Acknowledgements
• Introduction
• Part I: The Regulation of Work: Imagining the Future
• Part II: Beyond the Employment Contract?
• Part III: Shifting Paradigms
• Part IV: Alternative Structures: Fundamental Social Rights, Decent Work and Human Rights
• Conclusions
• Bibliography
• Index