School of Law

Abstracts

Diamond Ashiagbor, SOAS University of London - Theorising the relationship between social rights and markets in regional integration projects

Simon Deakin, University of Cambridge - Quantitative Approaches to Labour Law Research: An Assessment and Defence

Ruth Dukes, University of Glasgow - Critical Approaches to the Study of Labour Law: Learning from Political Economy and Economic Sociology

Judy Fudge, University of Kent - Conceptualising Unfree Labour and Labour Exploitation: Legal Characterisation

Jenny Julén Votinius, Lund University - Normative Distortions – Parental Rights and Market Values in Labour Law

Robert Knegt, Hugo Sinzheimer Institute, University of Amsterdam - Practices, Concepts and Constitutions of Labour Relations

Shelley Marshall, Monash University - Using a historical institutionalist approach to assess the Cambodian Better Factories Project

Claire Mummé, University of Windsor Faculty of Law - The Value of Global Value Chain Analysis for Labour Law

 

Diamond Ashiagbor, SOAS University of London
Theorising the relationship between social rights and markets in regional integration projects

Drawing upon earlier ‘theory-building’ work, on relationships between law and economy (Ashiagbor, Kotiswaran and Perry-Kessaris, 2013 and 2014), this paper seeks to apply insights of economic sociology of law to social rights in developing economies. It explores the nature and value of an economic sociology of law; that is, the use of sociological approaches (empirical, normative, analytical) to investigate relationships between (labour) law and economy. In particular, it seeks to theorise the relationship between social rights and markets in the context of regional economic integration. The rise of the market ‘as the metric of the rationality of law and policy’ (Rittich, 2014) challenges labour market institutions and social policies, especially in the context of cross-national market integration projects – namely the EU and the AU – of which a core raison d’etre is that labour is commodified as one of factors of production. To what extent, therefore, can social rights mediate the operation of markets, with regional actors rather than states ‘participating in the market but regulating it at the same time’ (McCrudden, 2007), in order to advance social justice?

Simon Deakin, University of Cambridge
Quantitative Approaches to Labour Law Research: An Assessment and Defence

This paper will consider the potential and limits of quantitative approaches to labour law research. It will explore the methods used to construct and validate indicators of labour regulation (‘leximetrics’) and those used in the econometric analysis of the effects of labour law rules on employment, productivity and inequality. The paper will argue that while there is a risk of the misuse and misappropriation of legal indicators, they can provide new evidence on the nature and effects of labour law rules, and thereby contribute to labour law theory as well as to the resolution of some practical issues of regulatory policy.

 

Ruth Dukes, University of Glasgow
Critical Approaches to the Study of Labour Law: Learning from Political Economy and Economic Sociology

As a preliminary step towards identifying and developing specific methodologies appropriate to specific research questions in the field of labour law, this paper argues for the general usefulness of approaches drawn from political economy and economic sociology. In doing so, it relies in particular on the work of Wolfgang Streeck and Jens Beckert. Relating the work of these scholars to labour law research, it identifies certain lines of continuity with ‘traditional’ approaches to the study of labour law and considers, at the same time, how such approaches would have to be adapted or augmented if they were to be used today.

Judy Fudge, University of Kent
Conceptualising Unfree Labour and Labour Exploitation: Legal Characterisation

Much of the scholarship on migrant workers tends to equate visa restrictions, especially those that tie a worker’s legal status to remain and to work in a host country to an on-going employment relationship with the sponsoring employer, as either the ‘cause’ or the marker of labour unfreedom. This conception of unfree labour is also compatible with traditional Marxist understandings of unfreedom that emphasise labour market mobility as the factor that distinguishes free from unfree labour in capitalist labour markets. Moreover, the concept of unfree labour is increasingly used as a way of referring to a range of legal categories, such as trafficking, slavery and forced labour, which tend to emphasise the criminal law jurisdiction as a way of addressing extreme instances of labour exploitation. This paper questions whether the concept of unfree labour reifies legal form over social relations in accounts of how to identify labour exploitation and in proposals for how to address it. It also questions whether free labour is the hallmark of a capitalist labour market. It concluded by considering whether the concept of unfree labour is a useful way of capturing what makes certain work relations in capitalist labour markets unacceptable.

 

Jenny Julén Votinius, Lund University
Normative Distortions – Parental Rights and Market Values in Labour Law

This paper identifies, conceptualises and analyses a conflict between two ideals, embedded in social practises and conceptions of gender in the institutional framework of the market, which underlies labour law regulation as well as legal argumentation regarding working parents. On the one side, this regulatory environment thus embraces an ideal intended to promote and support parental caring. On the other side, it embraces the ideal of market efficiency. The paper evinces and models the basic structure of vital mechanisms operative in weakening the ideal of parental caring in working life and labour law. The model is fleshed out inductively, using examples from Swedish national law, where the protection of parental rights is fairly strongly formulated, but where, at the same time, the provisions concerning employees’ parenthood have a relatively weak position in the living law. The weakness is explained as a normative incoherence stemming from the conflict of ideals, as expressed in labour law adjudication. In their application, legal provisions on parenthood based on the ideal of parental care can thus be forced to give way to encroaching norms and values based on the ideal of market efficiency.

Robert Knegt, Hugo Sinzheimer Institute, University of Amsterdam
Practices, Concepts and Constitutions of Labour Relations

Labour lawyers’ answers to the current challenge of labour law by dominant neo-liberal theories and policies testify to different strategies, that seem to some extent to reflect ‘national’ traditions and contexts of labour relations. On the one side, ‘conservatives’ argue that labour law’s context has changed but that its values and maxims are firmly standing as much as they have been before (f.i. M. Weiss). On the other side, ‘reformists’ feel that labour law should adopt the transformed labour market policy goals and adjust its perspective (f.i. P. Davies & M. Freedland). In between, scholars are, along different lines, trying, in the midst of a wild current of neo-liberal policies, to somehow get on some firm normative ground. In the paper, three strategies of doing this are discussed. All of them imply a specific methodology of combining legal with other disciplines.

A first strategy would be to adopt, for argumentative reasons, the economic concept of labour ex-change as a ‘market’, but to interpret it not as restrictively as orthodox economists, typically thinking of ‘spot markets’, use to do. If ‘efficient functioning’ would encompass the sustainability of the labour market, it is possible to investigate under what social conditions such a market could, in our current economic context, expect to be functioning well. Then labour regulation can, to a certain extent, be considered to fulfil requirements that flow from these conditions, and thus to contribute, rather than to raise obstacles to, an efficient functioning of the labour market. This methodological approach may, to that extent, provide for argumentative tools with the potential to appeal to, or even convince analysts and political actors who predominantly reason from an economic perspective. This approach, however, will be shown to meet with significant limitations, not only in a theoretical but also in a practical sense, as it leaves labour law with a legitimation gap to be filled.

If, in response to the challenge, one does not immediately content oneself with appealing to authoritative legal sources, the gap in the legitimation of labour law may, secondly, be filled by claiming additional requirements that flow either from characteristics of the condition humaine or from general statements about social well-being, that are rather criticising the scope (f.i. orthodox economy’s view of resources, endowments and preferences as exogenous to the operation of markets) than contesting the hegemony of an economic perspective on labour. This approach tends to restore markets to an instrumental role, meanwhile looking for ways to broaden the economic perspective, f.i. by attempting to make A. Sen’s capability approach fruitful for theories of labour relations. This is a promising approach, in that we do need new concepts to shape future relations; however, to expect that economic theory and policies, the primary strategic aims of this project, would embrace this broadening of perspective, is problematic for several reasons.

A third way is to contest the current constitution of labour relations as a quasi-apolitical market sphere. Both Alain Supiot and Ruth Dukes have been, in different ways, trying to get the public-political element back in. The fate of their efforts seems to depend on the availability of some kind of central, legitimate authority strong enough to enforce rules that matter for these projects. It is questionable under what social and political conditions such projects could nowadays be successful.

One way to find a partial answer to this question, is to review different normative regimes that have historically applied to labour practices, in Western Europe, in relation to their economic, social and political conditions. I consider the modern legal conception of labour relations as the result of a historically contingent combination of the development of Enlightenment concepts, of strong nation states, of industrialised production and of post-war social compromises. I argue that changing concepts of law and government have, no less than technological developments in production, been determining labour relations in a very practical sense. The review results in some more general conclusions on the relation between legal conceptualisations and labour relations.

In his times, Hugo Sinzheimer thought that if only one had a legal-sociological frame of mind and looked very carefully at what was newly developing before one’s eyes, it was not difficult to ‘know’ what legal structuring these new relations needed – and it was then the task of legal scientists to grasp their ideational kernel and translate them into law-to-be. We are nowadays less confident that such a translation could be a matter of professional technicality, but the relation between labour relations and their normative (legal) structure and the ‘elective affinity’ (Goethe-Weber) between these is still an issue of considerable concern. The paper ends with some theoretically inspired thoughts on what this might mean for methodologies concerning labour law and labour markets.

Shelley Marshall, Monash University
Using a historical institutionalist approach to assess the Cambodian Better Factories Project

The Cambodian Better Factories Project and the U.S.-Cambodia Textile Agreement, which led to its formation, have been written about extensively in the labour relations and labour law literature. Assessments of the initiative are overwhelmingly positive (Kolben 2004, Polaski 2006). Some reports have been critical of its lack of transparency (International Human Rights and Conflict Resolution Clinic and Worker Rights Consortium 2013), but they acknowledge the contribution of BFC to the improvement of labour standards in the garment industry in Cambodia. This paper revisits the assessment of the BFC using an approach not previously applied to the initiative. A historical institutionalist approach is used in order to situate the initiative within Cambodia’s political economy context and assess its operation within a broader institutional complex. Instead of examining BFC as if it were a free standing institution, it assesses it within the network of institutions in which it operates. This institutional complex includes the system of local labour market institutions. It comprises the unique labour relations in Cambodia which both supplies feminised cheap labour to the garment industry from rural villages and legitimises the public voice of that feminised labour as part of the proud Khmerisation of the economy. In addition, BFC operates within the political and economic system of neopatrimonialism which the long standing Hun Sen government has fostered. Articles concerning BFC often comment on the role of corruption, but corruption is only one aspect of a set of social relations and institutions which constitute neopatrimonialism. Importantly, also, BFC is as much a consequence of trade relations as it is a labour market institution, so the paper examines the BFC’s interaction with institutions of trade. With regards to each institution, a historical view is taken, rather than a snap shot of present arrangements, in order to better understand how and why institutions developed in the way that they have. This approach yields a far richer picture than previously generated by existing assessments of BFC. It leads to an enhanced appreciation of why BFC is failing in certain respects and in other respects succeeding. This approach also provides a clearer picture of likely hurdles to future reform. Most relevantly, it indicates probable barriers to indigenisation of the programme.

Claire Mummé, University of Windsor Faculty of Law
The Value of Global Value Chain Analysis for Labour Law

Global value chains (GVCs) are the current focus of development policies across the world. As former Director-General of the World Trade Organization (WTO) Pascal Lamy recently noted, GVCs are the “face of the modern global economy” and are creating a “new world of trade”. This year’s ILO Annual Conference is set to address its role in the regulation of GVCs, and the United Nations Conference on Trade Development (UNCTAD) recently dedicated its main publication, the World Investment Report, to their study.

Although there are many scholars working on labouring along supply chains, labour lawyers are only slowly entering the fray. GVCs began to emerge in the late 1970s, as part of a process of vertical disintegration. Vertical disintegration has presented severe challenges to the traditional features of domestic labour law systems, and has been the subject of labour law scholarship for decades. And indeed, almost all current topics of controversy in labour law relate to the vertical reconfiguration of production. Scholars investigate the changing nature of who is an employer, the legal regulation of outsourcing, the fissuring of workplaces, and the dwindling power of the strike.

What I propose is to use a GVC analysis of domestic labour law to systematically lay out all the ways in which current labour law principles impede workers from collectively organizing in a vertical manner along a supply chain, and in doing so map out the relationship between the major challenges currently faced by domestic labour law systems.

At a first level what a GVC analysis allows us is to depict the relationship amongst workers at different points of production, both domestically and across borders. But, more centrally, what a GVC analysis can provide for labour law scholarship is a heuristic device to map out the interrelationship between the multiple points of pressure on the traditional concepts and boundaries of domestic labour law. In doing so a holistic picture of the differences between the legal structures of labour law (which are typically horizontal in orientation, focused on enterprises or industries) and global structures of production (which are more or less vertical) emerges. In locating the legal impediments to vertical organizing, the domestic political decisions (legislative and judicial) that entrench and sustain the current legal mismatch are emphasized, and, (hopefully) the places and spaces where legal and political pressure may usefully be applied may come to light.

Finally, a GVC analysis allows us to bridge domestic and transnational studies of labour law. GVCs are typically invoked in labour law scholarship to discuss the regulatory mismatch between the domestic nature of labour law and the transnational nature of capital, and/or to analyze labour in developing countries. But a GVC analysis is of equal value to the domestic study of labour law as it is to the transnational. GVCs operate within and across national boundaries. Domestic outsourcing of work is simply the local application of GVC production, and is therefore the product and subject of domestic legal decisions. Applying GVC analysis to domestic labour law systems thus allows us to highlight the political choices that each polity makes in creating and entrenching obstacles to vertical organizing.