Re-Imagining Labour Law for Development

Informal Work in the Global North and South

Diamond Ashiagbor, Diamond Ashiagbor

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509913121
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The aim of this book is to explore labour law's conceptual and normative narrative. If labour law is informed by the wider political and economic landscape within which it operates, then given the declining prevalence of the post-war model of full employment within a formal welfare state regime, what shape does or should labour law assume in response to the transformation of the political economy in countries of the global North? Correspondingly, what is the proper role to be played by labour law and labour relations institutions in the development process within industrialising countries of the global South, where informal employment has long been, and remains, the predominant form? Drawing on the expertise of leading labour law scholars, this collection addresses those questions by examining the growth and continued prevalence of informality. Offering research that is both empirically grounded and doctrinally astute, the book explores the changing character of labour law in the global North and South.

PART I

Theorising Informality and Informalisation: Historical and Development Perspectives

1

Historicising Labour in Development: Labour Market Formalisation through the Lens of British Colonial Administration

KERRY RITTICH

I.Introduction

Informal labour markets and work practices have long attracted the concern of development thinkers and planners. The source of this attention is not difficult to locate. Securing an adequate labour force, one that reliably serves the needs of capitalist enterprise, is invariably regarded as central to advancing economic development. Informal economic structures and arrangements often confound such ambitions, impeding the expected reallocation of resources such as labour and land, and disturbing the general vision of social progress behind the development enterprise itself.

Recasting work relationships in legal, and explicitly contractual, form has been a favoured means to advance the ends of greater productivity and economic growth, and it remains virtually definitional to development in its present market-centred forms, especially those that aim to advance human as well as economic development.¹ Yet although highly popular both within development constituencies and beyond, addressing informality at work turns out to be a complex and obstacle-ridden exercise. Formalisation never ‘succeeds’ in any simple way: whatever the aims of those introducing reforms, formalisation rarely if ever produces the well-functioning markets and workers that are its imagined result. Indeed, it is sometimes unclear to what extent formalisation changes how productive activity is organised. Even what it means to formalise work is, in legal terms, highly contentious and uncertain. Yet for all this uncertainty, formalisation can be highly consequential nonetheless. In context after context, formalisation not only produces outcomes quite different from those originally envisaged. It may produce distinct disadvantages rather than benefits for those who find their status formalised.² How and why such results might occur therefore seems of deep interest.

One way to illuminate these possibilities is to investigate the genealogy of labour market formalisation efforts, tracing the hopes and claims that have motivated its pursuit and shaped its form over time. Looking at two classic texts of British colonial administration, here I locate the conundrums of informality alongside the long-standing preoccupation among colonial administrators to create a more productive labour force. The idea is to uncover something about the character, direction and consequences of current efforts at formalisation by juxtaposing them with historical efforts to manage the problems of labour as they were then conceived. For the dilemmas of informality and the problems of native labour emanate from at least one common source and, for this reason, they can be productively viewed through a common lens: they are fundamentally about what happens when societies are set upon the trajectory towards liberal modernity, and their affiliations, institutions and activities reorganised according to market principles in the service of more efficient production and greater economic growth. Along with something about the enduring as well as changing forms of work itself, then, through this juxtaposition we might discern something about the heuristics and techniques that are common to managing labour in the colonial context and contemporary engagements with informal markets and workers.

The first text is Lord Lugard’s The Dual Mandate in British Tropical Africa,³ first published in 1922; the second is JS Furnivall’s Colonial Policy and Practice: A Comparative Study of Burma and Netherlands India,⁴ now Indonesia, published in 1948. Each was written in the shadow of cataclysmic global conflicts that, inter alia, destabilised British colonial projects and either sharply curtailed or effectively ended their ambitions. Both works can also, I suggest, be read as a species of development tract or treatise avant la lettre. To be clear, the claim is not that these texts can be read as providing the essential ‘truth’ concerning the nature and organisation of work within the colonised societies which they describe; on this and on other issues, there are multiple bases on which to differ or object. Any contemporary reader, for example, is likely to be struck by the pervasive racial bias evident throughout Lugard’s analysis, as well as the open preference for furthering ‘global’ demands and interests or those of European powers, common to both when it comes to matters of policy and development strategy. Rather, reading these texts is designed to do something else: to provide a window onto the minds, observations and calculations of those who governed as they attempted to address the challenges they viewed as central to the larger economic and political purposes they were aiming to further.

Tracing the continuities as well as discontinuities, in the problems as the administrators saw them and in the projects they chose to pursue provides a vantage point for examining informality, as an empirical phenomenon and as an object of interest in respect of governance. This same exercise also reveals repeated, persistent gaps between the aims and effects of formalisation, casting doubt on claims that formalisation is ineluctably linked to greater freedom and empowerment for workers,. As Chris Tomlins trenchantly observed, ‘[c]olonizing’s incessant demands for labor, the forms in which both the supply of labor and the work performed were organised in response, and the social and ideological practices that resulted, interrupt conventional narratives of Anglo-American modernity and the waxing formal freedoms in relations among law, economy, and society that are their marker.’⁵

II.Representing Work: Formality and Informality Reconsidered

‘Your illusions are a part of you like your bones and flesh and memory’.⁶

A.Representing Informality

The larger project of which this analysis is a part is framed as an inquiry into the normative and conceptual narratives of labour law.⁷ We take it as common ground, then, that these narratives themselves do important work in shaping our approach to the discipline. But this central insight extends further, to the very subject matter of the field, work itself. Put simply, work and its problems do not simply exist as facts to which we have common and unmediated access. Rather, we access the world of work through structures of representation. Normative and conceptual narratives also inform the specific problems of work with which we grapple. They provide a grammar through which we understand the world of work, a means through which its features becomes legible to us. We register certain activities as work, and particular aspects of those activities as salient and significant, in the context of the frame in which we make sense of the world of work as a whole.

If we approach informality in this vein, as a vehicle and site of representation, we can better see the work that informality itself performs itself as a heuristic: how it frames the objects of concern, how it constitutes some features of economic life and activity as problematic, and how it impels us to address those problems in particular ways. From this standpoint, informality appears not simply a socio-legal condition: it emerges as a decision-making apparatus, a way of ordering claims, a means to make choices about what counts and what to do. As a category within development thinking, informality stands in hierarchical relation to formality. As a normative frame, it produces its own narratives of backwardness and progress, directing our attention to a pre-identified set of predicaments and channelling reform efforts and simultaneously crafting normal work and normal labour markets. Viewed through the prism of informality, we can better see how the legal rules that constitute, and reconstitute, the world of work might be ordered and chosen, how they are intended to function in the larger picture of the economy as a whole.

B.Resituating Informal Work

Pushing the representational motif further, we might effect a figure/ground reversal and imagine that informality now constitutes as much a ‘normal’ as an exceptional condition of work. Although informality is strongly associated with the labour markets and traditional work practices of the global South, a series of collapsing distinctions between core and periphery in the world of work make this conceptual reversal seem plausible.

The first is the spread of waged work both as empirical reality and as normative or aspirational trajectory in the global South.⁸ We might understand this as a vindication of the modernisation thesis, the claim that like other markets, labour markets tend towards formalisation as they expand over time and space while work relations tend to converge around the employment relationship as economies industrialise.⁹ The second move goes in the opposite direction, and involves a phenomenon unanticipated in modernisation narratives: the emergence and entrenchment of informal work and informal labour markets alongside their formal counterparts across the industrialised world.¹⁰ The third shift is the normalisation of labour market flexibility, a complex process involving the deconsolidation of the regulatory benchmark for work in the industrialised world, the standard employment relationship, and its replacement with a rapidly proliferating set of fragmented, highly differentiated workplace relations. Although flexibility itself operates through legal rules and institutions, the process is sometimes identified as ‘informalisation’¹¹ because of the extent to which it leaves workers shorn of the protections that labour market institutions used to provide, and because, insofar as the allocation of contractual risk is concerned, the results are increasingly difficult to distinguish from other commercial relations. Operating together, these changes help explain the last shift: growing transnational linkages across core and periphery in the world of work, and the consequent difficulty of continuing to locate particular sectors and societies within categories such as ‘developed’ or ‘industrialising’.¹²

If informality now captures central aspects of work in the industrial and post-industrial as well as ‘developing’ world, there are other reasons to look beyond formal law when it comes to ...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Notes on Contributors
• Introduction: Narratives of Informality and Development
• PART I: THEORISING INFORMALITY AND INFORMALISATION: HISTORICAL AND DEVELOPMENT PERSPECTIVES
• PART II: INTERDISCIPLINARY APPROACHES: HISTORICAL, INSTITUTIONAL AND POLITICAL ECONOMY
• PART III: EMPIRICAL APPROACHES: REGULATING INFORMALITY
• Index
• Copyright Page